Murder and Manslaughter Offences Flashcards
S167 - Murder Defined
S167 CA 1961:
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 or she does not mean to hurt the person killed:
(d) if the offender for any unlawful object does an act that he or she knows to be likely to cause death, and thereby kills any person, though he or she may have desired that his or her object should be effected without hurting any one.
S168 - Further Definition of Murder
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 or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), 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 or she administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
(c) if he or she by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
If charging 167 - must show the defendant:
- intended to cause death
-Knew that death was likely to ensue or
-Was reckless that death would likely ensue
Reckless - caselaw x 2
CAMERON V R
For 167(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)
R v Piri
Recklessness [here] involves a conscious, deliberate risktaking. The degree of risk of death forseen 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) - case law
R V Desmond
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.
167(d) - what matters will the court consider:
-whether the defendant knew the acts were likely to cause death and
-without the defendants original intent of indecent assault and mounted to an unlawful object
Example - the defendant broke into the home of partially paralysed woman, he placed her in the bed and indecently assaulted her. The victim subsequently died as a result of asphyxiation due to the injuries sustained before the incident assault.
S66 (2) - extends criminal responsibility of murder:
Parties to offences:
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.
Joint responsibility
Whether reliance is placed on subsection one or two of S 66 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 and ensued, bring the conduct within the terms of section 168.
Sentencing Act - s102
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.
S173
Attempted murder (own offence)
Need to establish the mens rea and Actus reus set out in S72
1) 2) 3)
Attempted Murder - case law:
R v Murphy
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.
Attempts - several attempts may constitute an attempt- case law:
R v HARPUR
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops …. The defendant conduct maybe considered in its entirety. considering how much remains to be done as always relevant, though not determinative.
S174
Counselling or attempting to procure murder:
Every one 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 New Zealand, when that murder is not in fact committed.
S175
Conspiracy to murder
(1)
Every one 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 New Zealand or elsewhere.
(2)
For the purposes of this section, the expression to murder includes to cause the death of another person out of New Zealand in circumstances that would amount to murder if the act were committed in New Zealand.
S176
176 Accessory after the fact to murder:
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
Accessory after the fact - case law:
R v Mane
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 of murder when the Actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
Manslaughter - by unlawful act 160(2) - 4 point test:
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
Manslaughter by negligence:
Two main sections:
S 155Duty of persons doing dangerous acts:
Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
S156 Duty of persons in charge of dangerous things:
Every one who has in his or her charge or under his or her control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
Negligent drivers
As a rule, dealt with by way of Land Transport Act 1998:
Gross Negligence- S150A
Standard of care applicable to persons under legal duties or performing unlawful acts
(1)
This section applies in respect of—
(a)
the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157; and
(b)
an unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.
(2)
For the purposes of this Part, a person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, to which this section applies only if, in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.
The ‘major departure’ test:
S150A(2) requires a high degree of negligence, corresponding to the common law standard of gross negligence.
