Homicide - Revision

Question 1

What was held in Murray Wright Ltd?

Answer 1

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 2

What was held in R v Myatt?

Answer 2

Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 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 3

What was held in R v Corbett regarding s160(2)(d)?

Answer 3

The victim’s conduct must be such that it could 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 4

What was held in R v Tomars?

Answer 4

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?

Question 5

What was held in R v Horry in relation to situations where the body has not been located?

Answer 5

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 6

What was held in R v Piri?

Answer 6

Recklessness involves a conscious, deliberate risk taking. The degree of risk of 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 7

What was held in R v Desmond?

Answer 7

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 8

What was held in R v Murphy?

Answer 8

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 9

What was held in R v Harpur?

Answer 9

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 10

What was held in R v Mane?

Answer 10

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 11

What was held in R v Blaue?

Answer 11

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

Question 12

What was held in R v Tarei?

Answer 12

The withdrawal of life support is not ‘treatment’ under s166. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

Question 13

What was held in R v Jordan?

Answer 13

1. Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury
2. In other circumstances, it is a question of fact to establish a causal connection between the death and the felonious injury

Question 14

When does a child become a human being?

Answer 14

Section 159, CA61:
(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 naval 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 15

When is homicide culpable?

Answer 15

Section 160, 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 of 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.

Question 16

What does it mean by ‘legal duty’ under s160(2)(b), and what are some examples?

Answer 16

Refers to those duties imposed by statute. Examples include:
- 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 17

What is required for proof of death?

Answer 17

To establish the death, you must prove the:
- Death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable
Death can be proved by direct and/or circumstantial evidence.

Question 18

What are two examples of when some acts are ‘justified’ even when they result in death (non-culpable homicide)?

Answer 18

Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability, for example:
- 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 anyone (s41)
Other non-culpable homicides are protected from only criminal responsibility.

Question 19

What is the legal view of consent to death?

Answer 19

The law does not recognise the right of a person to consent to their being killed (s63 CA61). As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.

Question 20

What is outlined in s167 CA61?

Answer 20

Section 167, CA61:
(1) Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed
(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
(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
(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 anyone

Question 21

What is outlined in s168 CA61?

Answer 21

Section 168, CA61:
(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:
(a) If he means to cause GBH 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
(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 22

If you are charging an offender with murder under s167, what three components of intent must you prove?

Answer 22

• Intended to cause death, or
• Knew that death was likely to ensue, or
• Was reckless that death would ensue
  If such intent is not present, the offence is manslaughter unless it falls within the provisions of infanticide (s178).

Question 23

What must you establish to show that the defendant’s state of mind meets the provisions of s167(b)?

Answer 23

• Intended to cause bodily injury to the deceased
• Knew the injury was likely to cause death
• Was reckless as to whether death ensued or not

Question 24

What is outlined in s172 CA61?

Answer 24

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 25

What is outlined in s173 CA61?

Answer 25

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

Question 26

What is outlined in s174 CA61?

Answer 26

Punishment for counselling or attempting to procure murder
Every one is liable to imprisonment for a term not exceed 10 years who incites, counsels, or attempts to procure any person to murder any other person in NZ, when that murder is not in fact committed.

Question 27

What is outlined in s175 CA61?

Answer 27

Punishment for conspiracy to murder
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 NZ or elsewhere.

Question 28

What is outlined in s176 CA61?

Answer 28

Punishment for 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.

Question 29

What is the difference between voluntary manslaughter and involuntary manslaughter?

Answer 29

Voluntary manslaughter involves 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 GBH.

Involuntary manslaughter 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 to cause grievous bodily harm.

Question 30

What are some examples from which a charge of manslaughter may arise?

Answer 30

• Killing in a sudden fight
• Manslaughter by unlawful act
• Manslaughter by negligence

Question 31

What is the ‘four-point test’ for proving an unlawful act for manslaughter?

Answer 31

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 32

What is outlined in s150A CA61?

Answer 32

Standard of care applicable to persons under legal duties or performing unlawful acts
Where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.
A person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act if, in the circumstances, 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.

Question 33

What is the ‘Major Departure’ test?

Answer 33

1. In s150A(2), this requires a high degree of negligence and if a person is to be criminally responsible under s160(2)(b) by negligent omission to perform or observe any of the legal duties specified in s150A(1) or s160(2)(a) for manslaughter by an unlawful act requiring proof of negligence or imposing strict or absolute liability.
2. Where negligent omission results in endangerment or injury contrary to s153(2).
3. Also relates to offences of ill-treatment or neglect of a child or a vulnerable adult and failure to protect a child or vulnerable adult.

Question 34

What is outlined in s177 CA61?

Answer 34

Punishment of manslaughter
Every one who commits manslaughter is liable to imprisonment for life.

Question 35

What is outlined in s178 CA61?

Answer 35

Infanticide
- A woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide
- 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 lactation OR any disorder consequent upon childbirth
- To such an extent she should not be held fully responsible
- Guilty of infanticide, not murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years

Question 36

What is outlined in s151 CA61?

Answer 36

Duty to provide the necessaries and protect from injury
Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty:
- To provide that person with necessaries; and
- To take reasonable steps to protect that person from injury

Question 37

What is outlined in s152 CA61?

Answer 37

Duty of parent or guardian to provide necessaries and protect from injury
Every one who is a parent (or in place of), who has actual care or charge of a child under the age of 18 years is under a legal duty:
- To provide that child with necessaries; and
- To take reasonable steps to protect that child from injury

Question 38

What is outlined in s153 CA61?

Answer 38

Duty of employers to provide necessaries
Every one who, as employer, has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured, by such omission.

Question 39

What is outlined in s154 CA61?

Answer 39

Abandoning child under 6
Unlawfully abandons or exposes any child under the age of 6 years.

Question 40

What is outlined in s155 CA61?

Answer 40

Duty of persons doing dangerous acts
Every one who undertakes to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 41

What is outlined in s156 CA61?

Answer 41

Duty of persons in charge of dangerous things
Every one who has in his charge or under his control anything whatever that may endanger human life is under a legal duty to take reasonable precautions against and to sue reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 42

What is outlined in s157 CA61?

Answer 42

Duty to avoid omissions dangerous to life
Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 43

What is outlined in s163 CA61?

Answer 43

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, not 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 44

What is outlined in s164 CA61?

Answer 44

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 45

What is outlined in s165 CA61?

Answer 45

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.
Jehovah’s witness and blood transfusion, defendant still responsible.

Question 46

What is outlined in s166 CA61?

Answer 46

Causing injury the treatment of which causes death
Every one who causes 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.
Defendant injures a person, treatment is administered, person dies, defendant is liable for the injury and its consequences.

Question 47

What is held in s179 CA61?

Answer 47

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 48

What is outlined in s180 CA61?

Answer 48

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 a suicide pact and one or more of them kills himself, any survivor is guilty of being a party to a death (5 years, cannot be convicted of s179)

Question 49

What is outlined in s181 CA61?

Answer 49

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.

Question 50

What is outlined in s18 of the Evidence Act 2006?

Answer 50

(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 51

When considering a hearsay statement as admissible evidence, what circumstances should you also consider regarding reliability?

Answer 51

• 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 52

What is the definition of ‘automatism’?

Answer 52

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

Question 53

What is the general definition of ‘compulsion or duress’?

Answer 53

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

Question 54

What is the definition of ‘entrapment’?

Answer 54

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

Question 55

What is the definition of ‘alibi’?

Answer 55

The plea in a criminal charge of having been elsewhere at the material time.

Question 56

What is the definition of ‘consent’?

Answer 56

Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another.

Question 57

What was held in R v Forrest and Forrest?

Answer 57

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

Question 58

Regarding burden of proof, what was held in R v Cottle?

Answer 58

As to degree of proof, it is 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

What was held in 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

What was held in R v Codere?

Answer 60

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 61

Regarding automatism, what was held in R v Cottle?

Answer 61

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 62

What was held in R v Joyce?

Answer 62

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

Question 63

What was held in Police v Lavelle?

Answer 63

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 64

Regarding consent, what was held in R v Cox?

Answer 64

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

Question 65

What is outlined in s21 CA61?

Answer 65

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.

Absolute defence.

Question 66

What is outlined in s22 CA61?

Answer 66

Children between 10 and 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.

Knew their act was wrong.

Question 67

Who are child offenders referred to?

Answer 67

The Care and Protection Co-ordinator (until they reach the age of 14 years).

Question 68

What is outlined in s23 CA61?

Answer 68

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
(3) Insanity before or after the time when he did or omitted the act, and insane delusions, though only 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 69

What is the M’Naghten’s Test?

Answer 69

M’Naghten’s test is based on the rationality of the defendant and depends on whether the person was:
- Suffering from a disease of the mind that they did not know
- Aware of the nature and quality of their actions
- Aware that their actions were wrong

Question 70

What are the consequences of being found unfit to stand trial or acquitted on account of his or her insanity?

Answer 70

The court must decide whether to detain, release or apply alternative orders to the person (public interest).
May be detained as a special patient or special care recipient under s24 and s25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Question 71

What are the two types of automatism?

Answer 71

1. Sane automatism: the result of somnambulism (sleepwalking), a blow to the head or the effect of drugs
2. Insane automatism: the result of a mental disease
   Both forms of automatism involve action without conscious volition.

Question 72

What are examples of automatism?

Answer 72

• Concussion (Bratty)
• Sleepwalking (Bratty)
• Brain tumour
• Epilepsy
• Arteriosclerosis
• Consumption of alcohol or drugs

Question 73

Regarding automatism, what are some examples of differing requirements of intent?

Answer 73

1. No intent required: Driving with an excess breath alcohol content. Defence must prove a total absence of fault – the person drove without conscious appreciation of the fact of driving, or of the fact of intoxication.
2. Intent required: Any offence that has intent as an element of the offence. Assault.

Question 74

In what situations might intoxication be used as a defence to the commission of an offence?

Answer 74

• Where the intoxication causes a disease of the mind so as to bring s23 (insanity) 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 75

What is outlined in s25 CA61?

Answer 75

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

Question 76

When does a person act under compulsion?

Answer 76

If they 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.

These threats must be operating on their mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.

Question 77

In relation to compulsion, what does ‘immediate’ mean?

Answer 77

Means at the scene from a person present at the time.

Question 78

What is outlined in s24 CA61?

Answer 78

Compulsion
A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

Question 79

What in effect is a defence of mistake?

Answer 79

A defence of mistake is in effect a denial of intent.

Question 80

Under what circumstances might ‘mistake’ be used as a defence?

Answer 80

If the elements of an offence include a requirement of intention, knowledge, or subjective recklessness, a person can be acquitted if there was no such state of mind at the time of the actus reus even though that mistake of fact may not have been based on ‘reasonable grounds’.

Except in the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence.

Question 81

What is outlined in s48 CA61?

Answer 81

Self-defence and defence of another
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 82

What people are considered unable to give consent?

Answer 82

• A child
• Unable to rationally understand the implications of their defence
• Subject to force, threats of force or fraud

Question 83

What actions do not allow for a defence of consent?

Answer 83

You cannot use the defence of consent in cases involving:
- Aiding suicide
- Criminal actions
- Injury likely to cause death
- Bodily harm likely to cause a breach of the peace
- Indecency offences
- The placing of someone in a situation where they are at risk of death or bodily harm

Question 84

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter? Explain your answer.

Answer 84

No. Because the killing must be done by a human being, an organisation cannot be convicted as the principal offender. Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal offender or a party to the offence because it is not possible for an organisation to serve the offence’s mandatory life sentence.

Question 85

When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?

Answer 85

• Self-defence
• The requisite mens rea for a murder/manslaughter charge

Question 86

What are the two rules relating to situations where an injury must remain a substantial cause of the death?

Answer 86

1. Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury
2. In other circumstances, it is a question of fact to establish a causal connection between the death and the felonious injury

Question 87

What happens when a child aged 10 to 13 years commits an offence?

Answer 87

Charges are filed in the District Court, the first appearance takes place before the Youth Court and then case then automatically transfers to the High Court for trial and sentencing.

Children aged 10 to 13 can be sentenced to imprisonment and be detained in a CYF Youth Justice Residence under the custody of the Chief Executive of the MSD.

Question 88

What happens when a child aged 14-16 years commits an offence?

Answer 88

Charges are filed in the District Court, the first appearance takes place before the Youth Court and then case then automatically transfers to the High Court for trial and sentencing.

Young persons can be sentenced to imprisonment for murder, manslaughter, cat 4 offences and cat 3 offences for which the max penalty is life or 14 years.

They can also be detained in a CYF Youth Justice Residence under the custody of the Chief Executive of the MSD.