Murder and Manslaughter Offences Flashcards
Murder and Manslaughter Offences - Introduction
The previous chapter distinguished between the types of culpable homicide.
This chapter covers the major charges of murder and manslaughter in more
detail, and looks at their penalties and related charges.
Murder defined
Sections 167 and 168 define the offence of Murder.
167 Murder defined
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 any one.
168 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:
(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:
(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.
About intent
In a criminal law context there are two specific types of intention in an
offence. Firstly there must be an intention to commit the act and secondly,
an intention to get a specific result.
Deliberate act:
“Intent” means that act or omission must be done deliberately. The act or
omission must be more than involuntary or accidental.
An example of this is section 2, Crimes Act 1961, where the definition of
assault “means the act of intentionally applying or attempting to apply
force.” For instance, a person intends to strike the victim with their fist on
the right side of the face above the eye.
Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this
context result means “aim, object, or purpose”. Simester and Brookbanks4
An example of this is section 228(1)(b), Crimes Act 1961, where
“Everyone is liable … who, with intent to obtain any property, service,
pecuniary advantage, or valuable consideration…” While the offender
deliberately intends to commit the act by using a document, their intention
is also to obtain a specific result, in this case, any one of the elements
specified in this section.
Intent to cause death
If you are charging an offender with murder under s167 you must show that
the defendant:
- 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 (section 178).
Recklessness
Acting “recklessly” involves consciously and deliberately taking an
unjustifiable risk.
It must be proved not only that the defendant was aware of the risk and
proceeded regardless (a subjective test), but also that it was unreasonable for
him to do so (an objective test).
The Supreme Court in Cameron v R5. The defendants were charged with
dealing in a “controlled drug analogue”, a Class C controlled drug, contrary
to the Misuse of Drugs Act 1975.
The jury found the substance was substantially similar to a Class B controlled drug, meeting the threshold for a “controlled drug analogue”. Recklessness is a test based on the defendant’s appreciation of the risk of the offence and their decision to run
that risk anyway.
Part (a) of the Cameron test is completely subjective. A “real
possibility” is substantively the same as something that “could well
happen” (as stated in R v Harney [1987] 2 NZLR 576), formally the
leading case on the Recklessness test. Both merely require that the
defendant has recognised the risk the offence anticipates as being
possible. The defendant does not need to consider the risk significant.
Part (b) is subjective and objective. It looks at whether the defendant’s
actions were objectively reasonable given the risk the defendant understood.
The Supreme Court in Cameron held that if the actions of the defendant
have no social utility, the running of any risk subjectively appreciated is
unreasonable and thus reckless. Where there is some social utility in the
actions of the defendant, whether those actions were unreasonable will
depend on “whether a reasonable and prudent person would have taken the
risk”.
An example of no social utility: game of ‘Russian roulette’ or personal
violence with a risk of serious injury or death.
Am example of high social utility: surgeon undertaking a risky but
potentially life saving surgery.
In R v Tipple
the Court suggested as a general rule “recklessness” is to be
given the subjective meaning. The concept is subjective in that it requires
that the offender know of, or have a conscious appreciation of the relevant
risk, and it may be said that it requires “a deliberate decision to run the risk”.
To show that the defendant’s state of mind meets the provisions of s167(b),
you must establish that the defendant:
* 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
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) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
R v Piri [1987] 1 NZLR 66
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:
Killing in pursuit of an unlawful object: s167(d)
The classic example of a case coming under this provision is one in which
death was caused by blowing up a prison wall to liberate prisoners.
In R v McKeown7 a 1983 homicide matter, the defendant McKeown broke
into the home of partially paralysed 68 yr old woman with the intent of
indecently assaulting her. Once inside he attacked and incapacitated the
victim then dragged her to a bedroom where he bound and gagged her. He
then placed her on a bed and indecently assaulted her.
The victim subsequently died as a result of asphyxiation due to the injuries
sustained before the indecent assault.
The Court looked at the following issues:
* whether the defendant knew the acts were likely to cause death, and
* whether the defendant’s original intent of indecent assault amounted to
an unlawful object.
In relation to the first issue the Court found that “the series of acts of
violence by the accused were virtually continuous and occurred within a
very short space of time. There was no evidential basis for suggesting that
during the brief attack his state of mind or purpose varied significantly . The
combination of acts resulted in death and there is no principle requiring
proof that the accused foresaw precisely how death would occur.”
As to the second issue the Court found the “unlawful object”, referred to in
section 167(d) of the Crimes Act 1961, does not need to be the same as that
injury that cause’s death. Here the indecent assault can be such an unlawful object where other personal injuries are inflicted in the knowledge that they are likely to cause death.”
The jury must decide whether the defendant knew that his or her actions at
the time were likely to cause death.
The distinction is made between an unlawful object and an object that may
be illicit or immoral. Where the object is unlawful, the actions of the
defendant are covered by paragraph (d) provided the defendant knows that
their action is likely to cause somebody’s death.
The jury decides whether the defendant had such knowledge at the time by
drawing inferences from all the circumstances, including what the defendant
said and did at the time.
Murder committed in the execution of a common purpose
Sections 66(2) (parties to offences) and 168 (extended definition of murder)
provide for the criminal responsibility of people who are in the course of
carrying out an unlawful purpose when one of them kills someone.
66 Parties to offences
(2) Where 2 or more persons form a common intention to prosecute any unlawful
purpose, and to assist each other therein, each of them is a party to every offence
committed by any one of them in the prosecution of the common purpose if the
commission of that offence was known to be a probable consequence of the
prosecution of the common purpose.
Section 168 must be read in conjunction with s158-s166.
Under s168 it is sufficient if the offender does any of the acts listed for one
or other of the purposes stated. In subsection (1)(a), “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”.
The secondary party must know the principal party might do the act that
causes death.
Joint responsibility
Whether reliance is placed on subsection (1) or subsection (2) of s66, it is
not necessary to show that the secondary party knew the death was a
probable consequence of their carrying out the primary purpose. Rather it
must be shown that the secondary party knew it was a probable consequence
that the principal might do an act that would, if death ensued, bring their
conduct within the terms of section 168.
Punishment of murder
Section 172 sets out the sentence of an offender who is convicted of murder.
172 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.
Effect of the Sentencing Act 2002
Sentencing Act 2002
Section 102 of the Sentencing Act 2002 states:
102 Presumption in favour of life imprisonment for murder
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of
imprisonment for life would be manifestly unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender
convicted of murder, it must give written reasons for not doing so.
Sections 103 and 104 of the Sentencing Act 2002 also give the court
discretion as to the minimum term to be imposed on a person convicted of
murder.
