Murder Flashcards
Case law
Murray Wright Ltd
Because the killing must be done by a human being, an organisation cannot be convicted as a principal offender:
Definition
Definition of homicide
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
S158 Crimes Act 1961
When does a child become a human being?
When it has proceeded in a living state from it’s mother.
S159 Crimes Act 1961
Case law
R v Myatt
An unlawful act must be an act likely to do harm to the deceased.
Caselaw
R v Tomars
- Was the deceased threatened by, in fear of or deceived by the defendant?
- Did this cause the deceased to do the act causing death?
- Would a reasonable and responsible people in the defendant’s position have foreseen the consequences?
- Did these foreseeable actions of the victim significantly contribute to his death?
Describe S163 of the Crimes Act 1961
Killing by influence on the mind alone is not a crime except for wilfully frightening a child under 16 or a sick person.
Caselaw
R v Horry
Death should be provable by circumstances that render it certain and leave no ground for reasonable doubt.
For when there is no body.
When is homicide protected from criminal and civil liability?
S48 and S41
What is required to establish death?
- Death occured
- The deceased is identified as the person who has been killed.
- The killing is culpable
What is required to prove a charge of murder?
- The offender intended for the victim to die
- The offender knew that death was likely to ensue
- The offender was reckless as to whether death would ensue.
Caselaw
R v Desmond
The object must be unlawful and the accused must know that it
is likely to cause death.
Caselaw
R v Piri
Recklessness involves a deliberate risk taking. The accused must recognise a real or substantial risk that death would be caused.
Caselaw
R v Murphy
To prove an attempt to commit an offence it must be shown that the
accused’s intent was to commit the substantive offence
Outline the penalty for murder
S172 Crimes Act 1961 states liability for life.
S102 Sentencing Act 2002 states it must be life unless thst would be manifestly unjust
R v Harpur
The court may view the accused’s conduct in its entirety. What remains to be done is always relevant.
Describe the test for proximity
- Has the offender done anything more than getting himself into a position where he could start an attempt?
- Has the offender actually commenced execution?
R v Mane
To be an accessory, the offence must be complete at the time of involvement
What is the difference between voluntary manslaughter and involuntary manslaughter?
Voluntary manslaughter is when circumstances mitigate murder to manslaughter.
Involuntary manslaughter is when there is no intent to kill
What is the four point test for manslaughter?
- The accused must intentionally do the act
- The act must be unlawful
- The act mustbbe dangerous
- The act must cause death
R v Blaue
Those who use violence must take their victims as they find them
Define ‘Vulnerable Adult’
A person who cannot withdraw themselves from the care or charge of another person because of detention, age, sickness, mental impairment or any other cause
Outline the six legal duties outlined by S151 - S157 Crimes Act?
-Providing necessaries and protect from injury
-As above (parents & guardians)
-providing necessaries as an employer
-Using skill and knowledge when conducting dangerous acts
-Taking precautions when in charge of dangerous things
-Avoiding omissions that would endanger life
“Protect Parents Employing Dangerous Knowledge, Omissions”
What does S63 of the Crimes Act hold?
Nobody can consent to their death
Can a homicide that arises from sport be culpable?
Yes, but only if the act was one that was likely to cause serious injury or death
What constitutes a culpable homicide under S160 Crines Act?
-An unlawful act
-An ommision without excuse to perform a lawful duty
-Both combined
-Causing a person through threats, fear of violence or deception to commit an act that causes their death.
-Wilfully frightening a person under 16 or a child/sick person
What are the two types of intent?
Intention to commit a deliberate act
Intention to get a specific result
What does S168 of the Crimes Act hold?
That an aggravated wounding that causes death is murder when done in conjunction with serious offences (most 14 year offences & burglary)
Is proximity a question of fact or law?
Law.
Penalty for attempted murder?
14 years
Can conspiracy to murder occur overseas?
Yes, but the conspiracy must be formed inside New Zealand
Penalty for manslaughter
Life imprisonment
What is the major departure test?
Gross negligence must be shown whether the case relates to an unlawful act or omission.
What is infanticide?
When a woman kills a child of hers under 10 years old when her mind was disturbed from the effects of giving birth
What is the penalty for infanticide?
3 years
Who decides the mothers state of mind in infanticide cases?
The jury
What is a suicide pact?
A common agreement between 2 or more persons having the object of death for all of them, regardless of whether they take their own life or another’s.
Manslaughter is the correct charge.
Describe the offence of concealing the body of a child
The disposal of the dead body of a child with intent to conceal the fact of its birth
What ages do the defences of infancy apply to?
Under 10: Absolute defence
10, 11, 12 & 13 Years old: Only a defence if they did not know that the offence was wrong or illegal
In relation to the defence of infancy, who does the burden of proof lie with in relation to not understanding that things are wrong/unlawful?
The prosecution
R v Forrest & Forrest?
The best evidence possible in the circumstances should be produced as to a victim’s age.
How should a child under 10 years old who commits murder be treated?
Care and protection matter
How should a child aged under 14 who commits murder be treated?
Charged under the youth justice provisions of the OT act.
How can the defence of insanity be raised in court?
It can only be raised by defence, not by prosecution.
Who does the burden of proof rest with when insanity is used as a defence?
It sits with teh defence to prove that they were insane.
However, they only need to prove that it is more likely than not.
R v Cottle?
In regards to insanity
It is sufficient if a plea of insanity is proven to the satisfaction of the jury on a balance of probabilities without necessarily excluding all reasonable doubt.
R v Clark?
The decision as to an accused’s insanity is for the jury. A verdict inconsistent with medical evidence is not necessarily unreasonable.
What is M’Naghten’s test?
To use the defence of insanity, a person must be suffering from a disease of the mind that means that the do not know:
1. The nature and quality of their actions
2. That what they were doing was wrong
R v Codere
The nature and quality of the act means the physical character of the act. The phrase doesw not involve the accused’s moral perception of the act.
R v Cottle
Automism
Automism is doing something without knowledge or memory of it. It is a lapse of consciousness while still able to move their body.
What is the difference between sane and insane automatism
Sane automism is the result of sleep walking, a blow to the head or the effects of drugs.
Insane automism is the result of a mental disease
Is automatism induced by drugs / alcohol a defence?
Yes.
However New Zealand courts do not allow this defence if the state of mind is self-induced, the person is blameworthy or the consequences could have been expected.
What is a strict liability offence?
An offence that does not require intent.
When can intoxication be used as a defence?
- When it causes a disease of the mind (insanity).
- When intent is required for the offence and the drunkeness is such that the defence can prove a lack of intent to commit the offence. (Mistake defence)
- Where the intox causes automatism.
What does S25 of the Crimes Act hold?
Ignorance of the law is no excuse.
What does S24 of the Crimes Act Hold?
Compulsion defence
What is required for the defence of compulsion?
A person must be:
1. Compelled by someone at the scene.
2. Threatened that they would be killed or suffer GBH.
3. Not be party or a part of a conspiracy to commit the offence
R v Joyce
Compulsion must be made by a person who is present when the offence is committed.
How does mistake work as a defence?
Offences that are not strict liabilities can use mistake as a defence if there is ignorance to matters of fact.
Not understanding that seeds planted in a garden are cannabis seeds
When does entrapment work as a defence?
When law enforcement deliberately causes a person to commit an offence so that they can be prosecuted.
This is not a substantive defence.
Police v Lavelle
Police can provide an opportunity for someone who is ready and willing to offend. Police can not initiate their interest or willingness.
Is the S48 defence a question of fact or law?
Fact, however the judge decides if it is fit to be provided to the jury
How does the defence of alibi work?
- Defence raises it within 10 working days of trial
- They must provide particulars of the witness or enough information for them to be identified
What is the procedure when interviewing alibi witnesses?
- Advise counsel
- Interview witness in presence of counsel or an independent person
- Disclose statement
