HOMICIDE - Legislation

Question 1

Homicide defined

Answer 1

Homicide defined s158 CA 1961

• Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
• Homicide must be culpable to be an offence.

However, in cases of:

Manslaughter; an organisation can be convicted as a party to the offence (section 66(1))

Murder, an organisation cannot be convicted as either a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence.

Question 2

Killing of a child

Answer 2

Killing of a child - s159 CA61

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.

The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 3

Culpable homicide

Answer 3

Culpable homicide - s160 CA61

(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; 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.

(3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.

Question 4

By unlawful act:

Answer 4

s160(2)(a) CA61 - By unlawful act:

The term “unlawful act” is defined in the section 2 of the Crimes Act 1961 as follows:

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

R v Myatt

[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 5

Omission to perform legal duty:

Answer 5

s160(2)(b) CA61 - Omission to perform legal duty:

Culpable homicide includes any death caused by an omission, without lawful excuse, to perform or observe any legal duty as defined by s160(2)(b).

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 & 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 6

Unlawful acts and omission of duty:

(Combined)

Answer 6

s160(2)(c) CA61 - Unlawful acts and omission of duty:

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).

Question 7

Threats, fear of violence and deception

Answer 7

s160(2)(d) CA61 - Threats, fear of violence & deception

A person is guilty of culpable murder if they cause the victim by threats, fear of violence or deception to do an act that results in the victim’s death. 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

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 defendant’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?

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 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 8

Frightening a child or sick person:

Answer 8

s160(2)(e) CA61 - Frightening a child or sick person:

In this instance, the fright need not be a result of fear of violence as under s160(2)(d), but may be caused by any act that frightens the child or sick person, so long as it is done wilfully.

“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”. Adams on Criminal Law

“Wilfully” here will require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that. Mens 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 (Simester and Brookbanks, 3rd ed, Principles of Criminal Law, p541).

Question 9

Death must be within a year and a day

Answer 9

s162 CA61 - Death must be within a year and a day

(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 10

Killing by influence on the mind

Answer 10

s163 CA61 - 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 for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.

Question 11

Acceleration of death

Answer 11

s164 CA61 - Acceleration of death

Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.

Question 12

Causing death that might have been prevented

Answer 12

s165 CA61 -Causing death that might have been prevented

Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.

R v Blaue

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

Question 13

Causing injury the treatment of which causes death

Answer 13

s166 CA61 - Causing injury the treatment of which causes death

Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

Question 14

Murder defined

Answer 14

s167 CA61 - Murder defined

Culpable homicide is murder in each of the following cases:

1. (a) If the offender means to cause the death of the person killed:
2. (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:

1. (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:

1. (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.

Question 15

Further definition of murder

Answer 15

s168 CA61 - 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:
1. (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:

1. (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.

Question 16

Manslaughter

Answer 16

s171 CA61 - Manslaughter

• Culpable homicide not amounting to murder is manslaughter.

Question 17

Punishment of murder

Answer 17

s172 CA61 - Punishment of murder

(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.

Question 18

Attempting to commit an offence

Answer 18

Attempting to commit an offence

Section 72, Crimes Act 1961 Definition of attempts

(1) Every one who, having an intent to commit an offence, 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. (2) The question whether an act done or omitted with 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.
(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, whether or not there was any act unequivocally showing the intent to commit that offence.

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:

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.

Question 19

Attempt to murder

Answer 19

s173 CA61 - Attempt to murder

s173 creates a separate offence of attempted murder. With an attempt to murder charge, the Crown is responsible for establishing the mens rea and actus rea as set out in s72:

Question 20

Punishment of attempted murder

Answer 20

Punishment of attempted murder

173 Attempt to murder

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

Question 21

Counselling or attempting to procure murder

Answer 21

s174 CA61 - Counselling or attempting to procure murder

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.

Question 22

Conspiracy to murder

Answer 22

s175 CA61 - Conspiracy to murder

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

Question 23

Accessory after the fact to murder

Answer 23

s176 CA61 - Accessory after the fact to murder

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

The definition of an accessory after the fact is given in section 71(1) of the Crimes Act 1961

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 24

Punishment of manslaughter

Answer 24

s177 CA61 - Punishment of manslaughter

(1) Every one who commits manslaughter is liable to imprisonment for life.

Question 25

Infanticide

Answer 25

s178 CA61 - Infanticide

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 26

Aiding and abetting suicide

Answer 26

s179 CA61 - Aiding and abetting suicide

Every one is liable to imprisonment for a term not exceeding 14 years who—

(a) Incites, counsels, or procures any person to commit suicide, if that person commits or

attempts to commit suicide in consequence thereof; or

(b) Aids or abets any person in the commission of suicide.

Question 27

Suicide pact

Answer 27

s180 CA61 - Suicide pact

(1) Every one 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 himself, 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 section 179 of this Act.
(3) For the purposes of this section 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 28

Concealing dead body of child

Answer 28

s181 Concealing dead body of child

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.