Homicides Flashcards
What is homicide?
Homicide is the killing of one human being by another. Before it can become a criminal charge, must be proceed killing was blameworthy or culpable.
Critical factors to consider charge of murder
Whether offender intended to
1. Kill the person OR
2. Cause bodily injury that the offender knew was likely to cause death
Where does the burden of proof lay in proving intent?
With the prosecution
Homicide Defined
Section 158 Crimes Act: Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
When does a child become a human being and capable of being murdered?
(1). When it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether is has independent circulation or not and whether 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.
What does is culpable homicide?
Culpable homicide means the kill is blameworthy. It includes murder, ma slaughter and infanticide
Section 160: 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, deception to do an act which causes death OR
e. By willingly frightening a child under 16 or a sick person
Unlawful Act
Means any breach of 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 purpose 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.
Legal Duties
- Provide the necessaries and protect from injury
- Provide necessaries and protect from injury to your charges when you are a parent or guardian
- Provide necessaries as an employer
- Use reasonable knowledge and skill when performing dangerous acts such as surgery
- Avoid omissions that will endanger life
Can you consent to being killed?
No. No one has the right to consent to being killed (S 63).
Death from lawful games or contests
Boxing, wrestling, hockey, football etc - The death caused by injuries during the game or contest is normally treated as non culpable homicide. Unless the death is caused by an act likely to cause serious injury, this is manslaughter.
To establish death, what must you prove?
- 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
R v Horry
Death should be probable 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
Can a charge of murder be laid even when a body has not been located?
Yes
Exception of justification (non-culpable homicide)
- Homicide committed in self defence
- 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
Note: use of force is limited to what is reasonably necessary in the circumstances
No indefinite liability
This rule prevents indefinite liability for prosecution for culpable homicide after an assault and the development of surgery and life support procedures has increased the chances of long delay before death.
The defendant will NOT be relieved of responsibility merely because a life support system is withdrawn in good faith
If you are charging the defendant with murder under S167, you must show that the Defendant:
- Intended to cause the death OR
- Knew that death was likely to ensue OR
- Was reckless that death would ensue
If such intent not present, offence is manslaughter unless it falls within provisions of infanticide (S 178)
Cameron v R
Recklessness is established if:
(a). The defendant recognised that there was a real possibility that
(i) His or her actions would bring about the proscribed result and/or
(ii) the the proscribed result existed and
(b) having regard to the risk, those actions were unreasonable
No social utility
Game of Russian roulette or personal violence with a risk of serious injury or death
High social utility
Surgeon undertaking a risky but potentially life saving surgery
R v Piri
Recklessness (here) involves a conscious, deliberate risk taking. The degree of risk of death forseen by the accused either 167(b) or (d) must be more than negligible or remote. The accused must recognise a “real or substantial risk” that the death would be caused.
R v Desmond
Not only just 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
Section 172: Punishment of murder
Liable to imprisonment for life
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 intention 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 defendants conduct may be considered in its entirety. Considering how much remains to be done, is always relevant, though not determinative.
Section 173: Attempted Murder. What is the punishment?
Imprisonment for a term not exceeding 14 years
Section 174: Counselling or attempting to procure murder. What is the penalty?
Everyone 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 NZ when that murder is not committed.
Section 175: Conspiracy to murder
(1) Everyone is liable to imprisonment for a term not exceeding 10 years who conspired or agrees with any person to murder any other person, whether murder is to take place in NZ or not
Section 175 may apply regardless of whether murder is committed or not
Section 176: Accessory after the fact to murder
7 years imprisonment
R v Mane
For a person to be an accessory the offence must be complete at the time of criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actual reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
Killed in a sudden fight. What must you consider?
Self defence
The requisite mens rea for a murder charge
If the homicide is out of self defence, proper verdict is acquittal.
If no mens rea to murder, verdict is manslaughter
Newbury & Jones: Four point test for proving an a lawful act for manslaughter
- The defendant must intentionally do an act
- The act must be lawful
- The act must be dangerous
- The act must cause death
Punishment of manslaughter
Liable to imprisonment for life
Necessaries of life
Commodities and service necessary to sustain life such as food, clothes, housing, warmth and medical care.
R v Blaue
Those who use violence must take their victims as they find them
Novus acus interviens
(A new intervening act)
An intervening act that breaks the chain of causation
R v Forrest and Forrest
The best evidence possible in the circumstances should be produced by the prosecution in proof of the victims age.
R v Cottle
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
R v Clark
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
Automatism
Total blackout during which a person is not conscious of their actions and not in control of them
R v Cottle (Automatism)
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
R v Joyce: Compulsion
The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed
Police v Lavelle
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 persons interest or willingness to do offend
