Homicide Law & Defences - CIB013 Flashcards
What is the penalty for attempted murder?
- Everyone who attempts to commit murder is liable for a term of imprisonment not exceeding 14 yrs
Define R v Tarei? (withdrawing life support).
- Withdraw of any form of life support is not “treatment” under S166 CA61.
- To withdraw it does not cause death
- But removes the chance of continuing life by artificial means.
Outline S181 CA61 (Concealing a dead body of a child)
- Everyone is liable for imprisonment not exceeding 2 yrs
- Who disposes a dead body
- of any child in any manner
- with intent to conceal the fact of its birth
- whether the child died before, during or after birth.
In which Court does a youth facing a charge of murder or manslaughter appear?
- Charges of murder or manslaughter will be heard in the High Court following the committal process in the Youth Court.
A question of law relating to whether the condition is a disease of the mind is answered by who?
- Judge
What the accused state of mind was at the time of the offence is a question decided by who?
- Jury
What is held in R v Kamipeli (Incapable of mens Rea)
- It does not have to be shown the defendant was incapable of forming the mens rea
- because of their drunken state
- they did not have proper state of mind to be guilty
What is the burden of proof for insanity?
- The accused is not required to prove the defence of insanity beyond reasonable doubt.
- But only to the satisfaction of the jury on the balance of probabilities.
under S153 CA61 what is the relevant age of a person who is employed?
- Under 16yrs
Where a charge of infanticide is laid who decides on the mothers state of mind?
- Jury
Before a conviction can be obtained for manslaughter, where one of the sections referred to is S150A(1) CA61, what must the prosecution prove?
- A very high degree of negligence or gross negligence.
Proximity is a question of law decided by who?
- Judge
Written notice of an alibi is to be given by the defendant when?
- Within 10 working days after the defendant is given notice under S20 of the Criminal Disclosure Act 2008
Define R v Cox?
- Consent must be full, voluntary, free and informed
- Freely and voluntary given by a person in a position to form a rational judgement
As general guideline most offences in the Crimes Act will require an intent (Mens Rea) of some kind. Outline a defence that would therefore be generally available?
- The defence of intoxication is available to the defence.
- It is to establish that the defendant did not have the required intent to carry out the offence.
Provide an overview of the culpability of a person involved in suicide pacts?
- Any survivor of pact is guilty of being party to a death (if a death to another occurs)
Outline S25 of CA61 (ignorance of the law)
- The fact an offender is ignorant of the law is not an excuse for any offence committed by him.
List 4 statutory legal duties in respect of CA61?
- Provide the necessaries and protect from injury
- Provide the necessaries as an employer
- Take precautions when in charge of dangerous things, such as machinery
- Avoid omissions that will endanger life.
List the difference between Counselling or attempting to commit murder (S174) and conspiracy to murder (S175)?
Counselling or attempting to commit murder (S174)
- Requires that the offence is to be committed in NZ
- Only applies if the murder is NOT committed
Conspiracy to murder (S175)
- Murder can take place in NZ or anywhere else
- Applies whether or not the murder was actually committed
Section 159(1) & (2) of CA61 define when a child becomes a human being and is therefore able to be murdered under S158. Detail the provisions of S159(1) &(2)?
159(1)
- A child becomes a human being
- 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
- Whether the navel string is severed or not
159(2)
- The killing of such a child is homicide if it dies from injuries received before, during or after birth
Define homicide under S158 of CA 61
- Homicide is the killing of a human being by another
- Directly or indirectly
- By any means whatsoever
What is meant by the term “justified”? Provide 2 examples?
Justified
- Some acts are justified even if they result in death. When it is justified that party is exempt from criminal and civil liability
eg
- Homicide committed in self-defence S48
- Homicide committed to prevent suicide or commission of an offence S41
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?
- Wilfully frightening a child under 16 years
- Wilfully frightening a sick person (mentally or physically)
What does the matter R v Myatt state about an unlawful act in respect of S160(2)(a) CA61?
R v MYATT
- Before any breach of any act, regulation or bylaw would be unlawful
- Under S160 for the purpose of culpable homicide
- It must be an act likely to
- Cause harm to the deceased or to some class of persons
Why is attempted murder one of the most difficult offence in the Crimes Act to prove beyond reasonable doubt? State the case law.
R v MURPHY
- It must be shown that the defendant’s intention was to commit the offence.
- For attempted murder the Crown must show an actual intent to kill.
What are the elements to Accessory after the to murder?
- Knowing any person to have been party to murder
- Receives, comforts, assets that person
or - Tampers with or actively suppresses evidence against that person
- In order to enable them escape after arrest
or - Avoid conviction
List the elements of S48 CA61?
- Everyone is justified in using
- In the defence of himself or another
- Such force
- In the circumstances as he believes them to be
- Reasonable to use
Provide 3 guidelines in respect of consent regarding assault?
- Everyone has a right to consent to a surgical operation
- Everyone has a right to the infliction of force but not involving bodily harm
- No one has a right to consent to their death or injury likely to cause death
In common law allegations culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any 4 of these circumstances? AAAH
- Committing arson
- Giving a child an excessive amount of alcohol to drink
- Conducting a illegal abortion
- Giving heroin to the deceased
In relation to S160(2)(d) CA61 give 2 practical examples of culpable homicide which has been caused by the victims actions, prompted by the threats or fear of violence? Think Operation JUTLAND
- Jumps or falls out of a window because they fear they will be assaulted
- Jumps into a river to escape an attack and drowns
To establish proof of death relation to homicide you must prove 3 keys elements. What are they?
1- Death occurred
2 - Deceased is identified as the person who has been killed
3- The killing was culpable.
What is the definition of the period “a year and a day” as outlined in Section 162(2) CA61?
- The period of a year and a day
- Shall be reckoned inclusive
- Of the day on which
- The last unlawfully act
- Contributing to the cause of death took place
Section 168(1)(a) CA61 refers to the term “grievous bodily harm” what does this mean and give an example?
GBH- Harm that is really serious
eg - injury to a vital organ
In the test of proximity Simester and Brockbanks (Principle of Criminal Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those 2 questions?
1- Has the offender done anything more than getting himself into a position he could actually attempt the offence
or
2- Has the offender actually commenced execution? has he taken steps in the actual crime itself?
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH?
- The accused is part of a suicide pact. It would normally be murder but reduced
What is involuntary manslaughter?
- Unlawful killing
- Death is caused by unlawful act or gross negligence
- In cases of no intention to kill or do GBH.
Define Alibi?
- A plea in a criminal charge
- Having been elsewhere
- At the material time
What must the defendant include in a notice of alibi?
- Name and address of witness
- If known to the defendant when given the notice
- Any info known that might assist in finding that witness