Module

Question 1

Homicide defined

Answer 1

Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever

Question 2

Killing of a child

s159

Answer 2

(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 a child is homicide if it dies in consequence of injuries received before, during, or after birth

Question 3

Culpable homicide

s160

Answer 3

(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 16yrs or a sick person

Question 4

R v Myatt

Answer 4

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

Question 5

In common law, allegations of culpable homicide have been supported where the offender has caused death by:

Answer 5

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 6

What does the term ‘legal duty’ mean

Answer 6

Legal duty refers to those duties imposed by statute or common law including uncodified common law duties.

Question 7

Provide examples of legal duties under the CA 1961

Answer 7

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
Take precautions when in charge of dangerous things, such as machinery
Avoid omissions that will endanger life

Question 8

Murray Wright Ltd

Answer 8

Because the killing must be done by a human being, an organisation cannot be convicted as a principal offender

Question 9

R v Tomars

Answer 9

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 10

Threats, fear, or deception can result in culpable homicide. Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:

Answer 10

Jumps or falls out of a window and dies 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 11

Define willfully frightening

Answer 11

Willfully frightening is regarded as intending to frighten or at least be reckless as to this

Question 12

Killing by influence on the mind

S163

Answer 12

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 13

To establish proof of death you must prove:

Answer 13

The death occurred
The deceased is identified as the person who has been killed
The killing is culpable

Question 14

R v Horry

Answer 14

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 15

Some acts are justified even when they result in death. Section 2 provided that when an act is justified the perpetrator is exempt from both criminal and civil liability. Examples include:

Answer 15

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)

Question 16

Murder defined

S167

Answer 16

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

Question 17

If you are charging an offender with murder under s167 you must show that the defendant:

Answer 17

Intended to cause the death, or
Knew that death was likely to ensue, or
Was reckless that death would ensue

Question 18

Cameron v R

Answer 18

Recklessness is established if the defendant recognised that there was a real possibility that his or her actions would bring about the proscribed result, and/or that the proscribed circumstances existed and having regard to that risk those actions were unreasonable

Question 19

To show that the defendant’s state of mind meets the provisions of s167(b) you must establish that the defendant:

Answer 19

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 20

Define grievous bodily injury

Answer 20

Grievous bodily injury means harm that is very serious, such as injury to a vital organ. To come within subsection 1(c), the stopping of the victim’s breath must be done wilfully.

Question 21

Definition of attempts

S72 (1)

Answer 21

Everyone 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

Question 22

R v Murphy

Answer 22

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 23

What is the test for proximity

Answer 23

Simester and Brookbanks suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:
Has the offender done anything more than getting himself into a position from which he could embark or an actual attempt? or
Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?

Proximity is a question of law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved

Question 24

Attempt to murder

S173

Answer 24

Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

Question 25

Counselling or attempting to procure murder

s174

Answer 25

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 in fact committed

Question 26

Conspiracy to murder

s175

Answer 26

(1) Everyone 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
(2) For the purposes of this section, the expression ‘to murder’ includes to cause the death of another person out of NZ in circumstances that would amount to murder if the act were committed in NZ

s175 may apply regardless of whether the murder was committed or not

Question 27

Accessory after the fact to murder

s176

Answer 27

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

Question 28

R v Mane

Answer 28

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 to murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed

Question 29

Section 160(2) deals with deaths that occur by way of an unlawful act.

An English matter, Newbury and James, outlines a four-point test for proving an unlawful act for manslaughter

Answer 29

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 30

s177 provides the punishment for manslaughter

Answer 30

(1) Everyone who commits manslaughter is liable to imprisonment for life

Question 31

Infanticide

s178

Answer 31

Where a woman caused the death of any child of hers under the age of 10yrs in a manner that amounts to culpable homicide, and where at the time of the offence the balance in 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 32

Jury to decide on mother’s state of mind

Answer 32

If a woman is charged with murder or manslaughter, but the jury believes her state of mind is due to the effects of childbirth, the jury is required to return a special verdict of acquittal on account of insanity caused by childbirth. However, the prosecution may file charging documents for both infanticide and murder of an infant, and it is up to the jury to decide on the mother’s state of mind

Question 33

Duty of parent or guardian to provide necessaries and protect from injury
s152

Answer 33

(1) Everyone who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty -
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury

Question 34

Duty of employers to provide necessaries

s153

Answer 34

(1) Everyone who as an 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 a 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 35

Abandoning a child under 6

s154

Answer 35

Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years

Question 36

Encouraging death

Answer 36

s163 concerns killing someone by influencing their mind. This means that if someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment, and committed suicide, the person causing the anxiety would not be culpable for the death

Question 37

Killing by influence on the mind

s163

Answer 37

No one is criminally responsible for the killing of another by any influence on the mind alone, except by willfully 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 willfully frightening any such child as aforesaid or a sick person

Question 38

R v Blaue

Answer 38

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

Question 39

Definition of suicide pact s180(3)

Answer 39

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 40

Concealing dead body of a child

s181

Answer 40

Everyone is liable to imprisonment for a term not exceeding 2 years who dispose of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child dies before, during, or after birth

Question 41

General admissibility of hearsay

s18 EA 2006

Answer 41

(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 42

R v Piri

Answer 42

Recklessness here 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 43

R v Desmond

Answer 43

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 44

What circumstances do you need to consider when taking a statement from a person who may die under s16(1) EA 2006

Answer 44

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