Murder and Manslaughter Offences Flashcards
s167 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.
Intent
Deliberate act – Intent means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Intent to produce a result- the second type of intent to produce a specific result, in this context result means “aim, object, or purpose”
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 ofence is manslaoughter unless it falls within the provisions of infanticide (s178)
R v HARNEY
“Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.”
R v PIRI
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 recognize a “real or substantial risk” that death would be caused:
R v Desmond - (Killing in pursuit of an unlawful object: s167(d)
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.
Murder committed in the execution of a common purpose
S66(2) and 168 provide for criminal responsibility of people who are in the course of carrying out an unlawful purpose when one of them kills someone.
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.
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.
Attempting to commit an offence
s 72(1) of the Crimes Act 1961 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 intended, whether in the circumstances it was possible to commit the offence or not.
Why is attempted murder one of the most difficult offences in the Crimes Act 1961 to prove beyond reasonable doubt? 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:
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’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative.
In the test for proximity, Simester and Brookbanks (Principles of Criminal Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those two questions?
- 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, has he taken a step in the actual crime itself?
Proximity is a question of law decided by whom?
The Judge, based on the assumption that the facts of the case are proved.
S173 – Attempt to murder
Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years
S174 – Counselling or attempting to procure murder
Everyone 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) Everyone 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 NZ or elsewhere.
(2) For the purposes of this section, the expression To murder includes to cause the death of another person out of NZ in circumstances that would amount to murder if the act were committed in NZ.
