Murder and manslaughter offences Flashcards
Murder ( defined in s167 and s168)
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 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,
(d) if offender for any unlawful object does an act that he knows likely to cause death, and thereby kills any person, although he may have desired that his object should be effected without hurting anyone
About intent:
Criminal law context:
- intention to commit the act and intention to get a specific result.
Deliberate act- intent means that act or omission must be done deliberately, must be more than involuntary or accidental.
Intent to produce a result- specific result, means the aim, object or purpose.
Intent to cause death; If charging defendant with murder under s167 you must show defendant:
- intended to cause death, or,
- knew that death was likely to ensue, or,
- was reckless that death would ensue
if no such intent is present, charge is murder, unless it falls within infanticide
Social utility-
No social utility- game of russian roulette. or personal violence with the risk of serious injury or death
- high social utility- surgeon undertaking a risky but potentially life saving surgery
Defendants state of mind meets s167(b) it must be established 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
Killing in pursuit of an unlawful object s167(d)
in R v McKeown a 1983 homicide, McKeowen broke into home of partially paralysed woman with intent of indecently assaulting her. he attacked and incapacitated her, dragged her to bedroom where he bound and gagged her. he then indecently assaulted her.victim subsequently died of asphyxiation due to injuries sustained before indecent assault.
Court looked at;
- whether defendant knew the acts were likely to cause death (found that series of acts of violence was vertially continuous and in a short space of time) and no evidential basis suggesting his state of mind or purpose varied.
and
- whether the defendants original intent of indecent assault mounted to an unlawful object (unlawful object does not need to be the same as the injury that caused death)
Murder committed in the execution of common purpose
s66(2) parties to offences and s168 extended defintion of murder- provides the criminal responsibility of people who are in the course of carrying out an unlawful purpose when one of them kills someone.
if offender does act acts like grevious bodily injury, such as injury to vital organ, stopping of victims breath must be done wilfully. The secondary party must know the principle part might do the act that causes death.
Joint responsibilty
Must be shown that secondary party knew it was a probable consequence that the principle might do an act that would, if death ensued, bring their conduct within terms of s168
Punishment of murder s172_
if convicted of murder
1) everyone who commits murder is liable to imprisionment for life
2) subsection 1 is subject to to section 102 of the sentencing act 2002
s102, Sentencing act 2002
102:
presumption in favour of life imprisonment for murder
1) an offender who is convicted of murder must be sentenced to life imprison unless, given the circumstances of the offence and the offender, a sentence of imprison for life would be manifestly unjust
2) if 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.
s103 and s104 give court discretion as to the minimum term to be imposed on a person convicted of murder.
The test for proximity;
test for when an act or mere preparation MAY becoming an attempt:
- has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? Or
- has the offender actually commenced execution, that is to say he has taken a step in the actual offence itself?
if the answer is yes we can say there has been an attempt as a matter of law
Proximity is a question of law:
it is question that is decided by the judge based on the assumption that the facts of the case are proved
Punishment of attempted murder
s173- attempted to murder
liable to imprisonment for a term not exceeding 14yrs
s168 Further defintion of murder
1) culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensure, or knows or does not know that death is likely to ensue
a) if he means to cause GBH injury for the purposes of facilitating the commission of any of the offences mentioned in s(2) of this section, or facilitating the flight or avoiding detection of the offender upon the commission or attempted commission thereof, or the purposes of resisting lawful apprehension in respect of any offence whatsoever, and death ensures from such an 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 the purposes aforesaid and death ensues from such stopping of breath
State of mind for s167(b)
You must establish 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
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 bodily injury as foresaid 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 likely to cause death and thereby kills any person, though he may have desired that his object should be effected without hurting anyone
GBH definiton
GBH means harm that is really serious, such as in injury to a vital organ. to come within subsection (1)(c) the stopping of the victims breathing must be done wilfully.
Differences between counselling or attempting to procure murder s174 and conspiracy to murder s175
- counselling or attempting to procure murder requires that the offence is to be committed in NZ, whereas with conspiracy to murder, the murder can take place in NZ or elsewhere
- counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not
Accessory after the fact to murder
knowing any person to have been party to murder, receives, comforts, assists that person or tampers with or actively suppresses evidence against that person in order to enable him to escape after arrest or avoid conviction
Voluntary manslaughter
Mitigating circumstances such as suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH
Involuntary manslaugther
Covers those type 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 cause GBH.
Manslaughter, then includes culpable homicide that
- does not come within s167 or s168
- Comes within s167 or s168 but is reduced to manslaughter because the killing was part of a suicide pact as defined by s180(3
the key difference between murder and manslaughter depends on the mental element that must be established to support the charge
Before conviction can be obtained for manslaughter, s150A of CA what must prosecutions prove?
A very high degree or negligence or gross negligence
Define s150A
Before conviction can be obtained for manslaughter, s150A of CA, prosecutions must prove a very high degree or negligence or gross negligence. These defintions are not defined by the courts.
Example when murder may be reduced to manslaughter even though the offender intended to kill or cause death GBH
Mitigating circumstances, such as suicide pact, reduce what would otherwise be murder to manslaughter, even though the accused may have intended to kill or cause GBH
Attempted murder defintion:
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 intentended
whether in the circumstances it was possible to commit the offence or not
everyone who attempts to commit murder is liable for a term of imprisionment not exceeding 14years
Proximity is a question of the law decided by whom?
The judge
Why is attempted murder one of the most difficult CA offences to prove?
R V Murphy- necessary for the crown to establish an actual intent to kill
To prove an attempt the defendant must have done or omitted to do some act that is sufficiently proximate to the full offence and gone beyond the phase of mere preparation.
Proximity questions, Simester and Brookbanks:
1) has the offender done anything more than getting himself into a position from which he could embark an actual attempt? Or
2) has the offender actually commenced execution, that its to say, he has taken a step in the actual crime itself?
Statutory legal duties in respect of CA?
1) provide the necessaries to protect from injury s151
2) provide necessaries and protect from injury to your charges when you are a parent or guardian s15
3) provide necessaries as an employer s153
4) use reasonable knowledge and skill when performing acts, such as surgery s155
5) Take precaution when in charge of dangerous things, such as machinery s156
6) avoid omission that will endanger life s157
Youth facing murder/manslaughter charge?
- YP 14-16 are usually dealth with under youth justice provisions OT Act 1989 - charges are filed in the DC, the first appearance takes place in YC then and then case automatically transfers to the high court for trial and sentencing. Same as children 10-13yrs.
You cannot use defence of consent when:
- aiding suicide
- criminal actions
- injury likely to cause death
- bodily harm likely to cause a breach of peace
- ## indecency offences
Strict liability offence
- any offence that does not require intent and only way defendant can escape liability for such an offence is to prove total absence of fault. Driving with excess breath alcohol.
