Murder and Manslaughter Offences Flashcards
Definition of Murder - Section 167
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 bodily injury to the person killed, the offender knows it is likely to cause death, and is reckless whether death ensues.
(c) If the offender means to cause death or, being reckless means to cause bodily injury 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 is likely to cause death, and kills any person, though he may have intended not to hurt anyone.
Further Definition of Murder - Section 168
Culpable homicide is also murder in each of the following cases:
(a) If the offender means to cause grievous bodily injury to
- facilitate the commission of an offence mentioned in subsection (2) , or
- facilitate the flight, or
- to avoid detection of the offender upon the commission or attempted commission of the offence, or
- to resist apprehension and death ensues from such injury.
(b) If he administers any stupefying or overpowering thing and death ensues from the effects.
(c) If he wilfully stops the breath of any person and death ensues.
Parties to - Section 66(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.
Definition of grievous bodily injury
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.
Presumption in favour of life imprisonment for murder - Section 102
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless due to 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.
Elements of Attempts
Section 72(1), Crimes Act 1961
- Everyone who
- Having an intent to commit an offence
- Does or omits an act
- For the purpose of accomplishing his or her object
- Is guilty of an attempt to commit the offence intended
- Whether in the circumstances it was possible to commit the offence or not.
The Test for Proximity
- Has the offender done anything more than get himself into a position where he could embark on an actual attempt?
- Has the offender actually commenced execution and taken a step into the actual offence?
Elements of Counselling or Attempting to Procure Murder
Section 174, Crimes Act 1961
- Everyone who
- Incites, counsels, or attempts to procure
- Any person to murder any other person in New Zealand
- When that murder is not in fact committed
Elements of Conspiracy to Murder
Section 175, Crimes Act 1961
- Everyone who
- Conspires or agrees with any person
- To murder any other person
- Whether the murder is to take place in New Zealand or elsewhere.
What are 3 differences between section 174 and section 175?
- Section 174 applies where murder is not in fact committed
- Section 175 may apply regardless of whether murder is committed or not
- Section 175 can include the death of another outside NZ
What elements to prove for Accessory after the fact to murder
Section 71(1)
- Everyone who
- Knowing any person to have been a party to murder (the offence)
- Receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him or her
- In order to enable him or her to escape after arrest or to avoid arrest or conviction
Voluntary manslaughter
Mitigating circumstances, such as a suicide pact, reduce what would be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.
Involuntary manslaughter
An unlawful killing in which the death is caused by an unlawful act or gross negligence where there has been no intention to kill or to cause grievous bodily harm.
Newbury and Jones outline a four-point test for proving an unlawful act for manslaughter
- The defendant must intentionally do an act
- The act must be unlawful
- The act must be dangerous
- The act must cause death
Objective test for gross negligence (The ‘Major Departure’ test)
- Whether having regard to the risk of death involved
- The conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission.
What is a strict liability offence and what are two examples?
An offence that requires no intent and the only way to escape liability is to prove a total absence of fault.
- Driving with excess breath alcohol
- Speeding offences
Four associated murder charges include:
− Attempted murder
− Counselling or attempting to procure murder
− Conspiracy to murder
− Accessory after the fact to murder.
Cameron v R
Recklessness is established if:
The defendant recognised that there was a real possibility that their actions would bring about the proscribed result and/or having regard to that risk those actions were unreasonable.
R v Piri
Recklessness involves a conscious and deliberate risk taking.
The degree of risk of death foreseen by the accused must be more than negligible or remote.
Accused must recognize a real or substantial risk that death would be caused.
R v Desmond
Not only must the object be unlawful, but the accused must know his act is likely to cause death.
It must be shown that his knowledge accompanied the act.
R v Murphy
When proving an attempt to commit an offence, it must be shown that the accused’s intention was to commit the full offence. For attempted murder, an intent to kill must be established.
R v Harper
The court may have regard to conduct viewed cumulatively up to the point where the conduct in question stops. The defendants conduct may be considered in its entirety. How much remains to be done is relevant though not determinative.
R v Mane
To be considered an accessory, the offence must be completed at the time of involvement.
A person cannot be convicted as an accessory after the fact to murder when the act is completed before the homicide was completed.
Before a conviction can be obtained for manslaughter the prosecution must prove:
A very high degree of negligence or gross negligence.
Proximity is a question of the law decided by whom?
The Judge
