Homicide Law & defences 'B' Files part two

Question 1

S159(1) &(2) CA61 define when a child becomes a human being and is therefore able to be murdered under section 159.

Detail the provisions of s159 (1) & (2) - Killing of a child (p11)

Answer 1

159 Killing of a child (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 2

In common law, allegations of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances– (p13)

Answer 2

• committing arson
• giving a child an excessive amount of alcohol to drink
• placing hot cinders and straw on a drunk person to frighten them
• supplying heroin to the deceased
• throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
• conducting an illegal abortion.

Question 3

In relation to s160(2)(d)CA61, give two practical examples of culpable homicide which has been caused by the victims actions, prompted by threats or fear of violence? (p15)

Answer 3

• 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

Question 4

To establish proof of death in relation to homicide, you must prove three key elements: (p16)

Answer 4

• Death occurred • Deceased is identified as the person who has been killed • The killing is culpable

Question 5

What is the definition of the period ‘a year and a day’ as outlined in s162(2) CA61: (p17)

Answer 5

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

Question 6

S168(1) C.A 1961, refers to the term grievous bodily injury. What does this mean and give an example of such an injury. (p24)

Answer 6

In subsection (1)(a) “grievous bodily injury means harm that is very serious, such as injury to a vital organ”

Question 7

In the test for proximity, Simester and Brookbanks (Principles of Criminal Law) suggests the following questions asked in determining the point which act of mere preparation of committing a crime may become an attempt: What are those two questions? (27)

Answer 7

• 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?

Question 8

What was held in the matter R v Mane in relation to when a person can be charged with AATF to murder, s176, CA61? (p28)

Answer 8

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

Question 9

Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH. Involuntary manslaughter – (p29 &52)

Answer 9

In 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.

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.

Question 10

State the ingredients of infanticide, S178,CA61

Answer 10

S178 – Infanticide (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.

Question 11

R v Blaue outlines how s165, CA61, Causing death that might have been prevented imposes a liability on a person who is responsible for a death, if an injury is inflicted by him, even though it could have been prevented with proper treatment. Detail what was found in this case. (p41)

Answer 11

R v Blaue - preventable death (Jehovah’s witness refuses blood after stabbing) ‘those who use violence must take their victims as they find them’

Question 12

With reference to S18(1)(a) &(b), EA06 - General admissibility of hearsay evidence, complete the subsection below: (p49)

Answer 12

(1) A hearsay statement is admissible in any proceeding if –
(a) the circumstances relating to the statement provide 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

Question 13

What is the meaning of the term ‘justified’ as defined in S2, CA61?

Answer 13

Sec 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly. (P57)

Question 14

What was held in the matter of R v Clancy in relation the best evidence rule when proving age of a child? (p59)

Answer 14

The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother….production of the birth certificate if available, may have added to the evidence but was not essential

Question 15

Define the term Automatism?

Answer 15

• 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

Question 16

What is the difference between the terms Sane automatism & Insane automatism? (p70)

Answer 16

Sane automatism is the result of somnambulism (sleep walking) a blow to the head or the effects of drugs.

Insane automatism is the result of a mental disease

Question 17

In the past intoxication was considered to be no defence to a criminal charge and indeed an aggravating rather than mitigating factor. What are the general rules regarding how intoxication may be a defence to the commission of an offence? (p73)

Answer 17

• Where the intoxication causes a disease of the mind so as to bring s23 (insanity) of the C.A 1961 into effect
• If intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
• Where the intoxication causes a state of automatism (complete acquittal)

Question 18

What is the general rule in NZ Courts of the ‘Defence of Entrapment? (p82)

Answer 18

• Courts reject entrapment as a defence per se
• preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.
• Exclusion may be considered where law enforcement agents have generated the offending

Question 19

Describe how the subjectvie / objective test is viewed in S48, CA61 which relates to self defence. [p85]

Answer 19

Subjective view= defendant decided that use of force was required (or from a view as the defendant believed them to be).

Objective view as to the degree and manner of the force used.

Degree of force:

• What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)?
• Do you accept that the defendant genuinely believes those facts?
• Is the force used reasonable in the circumstances believed to exist?

Question 20

Define the term alibi? (p87)

Answer 20

An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere. (Chambers 20th Century Dictionary)

Question 21

Jack & Steve entered into a suicide pact. Jack shoots Steve in the head and kills him then puts the gun to his own head but shoots his ear off only. Jack can be charged with:

(a) s180(2), C.A 1961 – Suicide Pact. Jack & Steve entered a suicide pact _________ survivor, being a party to the death, is liable.
(b) s180(1), C.A 1961 – Suicide Pact, Jack is guilty of manslaughter ____killed Steve.
(c) s179, C.A 1961, as Jack aided Steve to commit suicide.

Answer 21

B

Question 22

6. 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 22

A

Question 23

In the test for proximity, Simester and Brookbanks (Principles of Criminal Law) suggests the following questions asked in determining the point which act of mere preparation of committing a crime may become an attempt: What are those two questions? (27)

Answer 23

• 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?

Question 24

Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH. Involuntary manslaughter – (p33)

Answer 24

In -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.

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.

Question 25

With reference to S18(1)(a) & (b), EA06 - General admissibility of hearsay evidence, complete the subsection below: (p49)

(1) A hearsay statement is admissible in any proceeding if –

Answer 25

(a) the circumstances relating to the statement provide 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

Question 26

Define the term Automatism?

Answer 26

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

Question 27

Sec 154, abandoning child under 6yrs (p39)

Answer 27

Every one is liable to imprisonment for a term not exceeding 7yrs who:

• unlawfully abandons or exposes any child under the age of 6yrs

Question 28

Explain the defences for children under 10yrs & children 10-13yrs: (p58)

Answer 28

A child aged under 10 years has an absolute defence to any charge brought against them. Still have to establish whether or not they are guilty.

Children aged 10-13 years

• It must be shown that the child knew their act was wrong or contrary to law.
• This test of knowledge is in addition to the mens rea and actus reus requirements.
• If this knowledge cannot be shown, the child cannot be criminally liable for the offence.

Question 29

s23 C.A 1961, Insanity states – (p63)

Answer 29

23 Insanity

(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the 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 an 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.

Question 30

Explain what a ‘strict liability offence’ is & give an example: pg79

Answer 30

A strict liability offence is an offence where no mens rea needs to be proved

Eg- EBA

Offences or basic intent:

1. Apply force to another person (assault), and
2. Fight with a person in a public place (fighting in a public place).

Question 31

What three points must be satisfied before a defence of ‘compulsion’ can be used. (79)

Answer 31

A person acts under “compulsion” if they

1. commit an offence having been compelled to do so by threats of immediate death or grievous bodily harm to themselves or another person present when the offence is committed.
2. These threats must be operating on their mind at the time of the act and
3. be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.

Question 32

Citing case law, discuss a pre-emptive strike (p86)

Answer 32

It is possible for self defence to be raised as a defence even if the defendant has used a pre-emptive strike against victim e.g.

R v Ranger - defendant stabbed partner in shoulder with sufficient force to kill as he threatened to kill her and son with guns he kept under bed

Question 33

2 instances when you cannot consent to assault (p91)

Answer 33

1. No one has a right to consent to their death or injury likely to cause death.
2. 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

Question 34

What is outlined in s66(2)?

Answer 34

(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.

Question 35

What are 3 differences between s174 - Counselling or attempting to procure murder and s175 - Conspiracy to Murder? (p28)

Answer 35

• 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)

Question 36

Why is attempted murder so hard to prove?

Answer 36

The requirement for “intent” in section 72(1) suggests that:

• only an intention to commit the offence will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.
• Therefore, this requirement on the Crown means that attempted murder is one of the most difficult offences in the Crimes Act to prove beyond a reasonable doubt.

Question 37

R v McKeown – the issues were: (p23)

Answer 37

a. Whether the defendant knew the acts were likely to cause death; and
b. Whether the original intent of indecent assault amounted to an unlawful object

Question 38

DPP v NEWBURY AND JONES – Unlawful Act for Manslaughter (p30)

Answer 38

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 39

How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?

Answer 39

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of- taking alcohol and drugs, to offences of basic intent only.

They are likely to disallow the defence where:

• the state of mind is obviously self-induced,
• the person is blameworthy, and
• the consequences could have been expected.

Question 40

Explain what is meant by section 160(2)(b) of the Crimes Act 1961, omission to perform a legal duty?

Answer 40

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.

Question 41

Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961?

Answer 41

Subjective view- The accused has decided that use of force was required (a subjective view of the circumstances as the accused believed them),

Objective view - A test of reasonableness as to the degree and manner of the force used.

Question 42

How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?

Answer 42

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only.

They are likely to disallow the defence where the state of mind is:

• obviously self-induced,
• the person is blameworthy,
• and the consequences could have been expected.

Question 43

Define “Legal Duty”?

Answer 43

The expression “legal duty” refers to those duties:

• imposed by statute or
• common law including uncodified common law duties.

Question 44

Define the term ‘vulnerable adult’.

Answer 44

A person unable, by reason of [MAD AS]

• mental impairment,
• age,
• detention,
• sickness or
• any other cause,

to withdraw himself or herself from the care or charge of another person.

Question 45

Explain the test contained in s150A(2), CA 1961.

Answer 45

• The omission or unlawful act 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.