Murder and Manslaughter Offences

Question 1

Murder Defined

Section 167 CA61

Answer 1

s167
Culpable homicide is murder in each of the following cases:

(a) If the offender means to cause 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 will likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.

Question 2

Further Definition of Murder

Section 168 CA61

Answer 2

s168

(1) Culpable homicide is also murder under 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 [facilitate 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 for 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.

Question 3

Intent

Definition

Answer 3

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.

Question 4

Recklessness

R v Harney

Answer 4

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.

Question 5

Reckless

R v Piri

Answer 5

Recklessness involves a conscious, deliberate risk taken. The degree of risk of death foreseen by the accused under 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.

Question 6

Killing in Pursuit of an Unlawful Objective

Section 167(d) CA61

Answer 6

Death caused by blowing up a prison wall to liberate prisoners.

R v Desmond
Not only must the objective 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.

Question 7

Murder Committed in the Execution of the Common Purpose

Section 66(2) CA61

Answer 7

s66 Parties to Offences

(2) Where two or more person form a common intention to commit an offence and assist each other therein, each of them is party to every offence committed by anyone of them in the commission of the common purpose if the commission of that offence was a probable consequence arising from the principle offence.

s168 Extended Definition of Murder

Question 8

Joint Responsibility

Answer 8

Whether reliance is placed on s66(1) or s66(2), it is not necessary to show that the secondary 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 principle might do an act that would, if death issued, bring their conduct within the terms of section 168.

Question 9

Punishment for Murder

Section 172 CA61

Answer 9

S172 Punishment for Murder

(1) Everyone one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to 102 of the Sentencing Act 2002.

Question 10

Attempt to Murder

Section 173 CA61

Answer 10

With an attempted murder charge (s173) Crown is required to establish the mens rea and acts reus as set out in s72:

Attempting to commit an offence

Section 72 Crimes Act 1961

(1) Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 11

Intent Must be Established

R v Murphy

Answer 11

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.

____

Therefore, this requirement on the Crown means that attempted murder is one of the most difficult offences in the Crimes Act to prove beyond reasonable doubt.

Question 12

s72(2) CA61

s72(3) CA61

Answer 12

s72(2)
Section 72(2) Proximity is a question of law; it is a question that is decided by the Judge based on the assumption that the facts of the case are proved.

_____

s(72(3)
Act(s) must be immediately or sufficiently proximate to the full offence:
Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation - the “all but” rule.

Question 13

Several acts together may constitute an attempt:

R v Harpur

Answer 13

R v Harpur
The defendant’s conduct may be viewed cumulatively up to the point when the conduct in question stops and may be considered in it’s entirety. Considering how much remains to be done is always relevant, though not determinative.

Question 14

Proximity

Answer 14

Do the facts show mere preparation, or are the defendant’s acts or omissions immediately or sufficiently proximate to the intended offence?

Test for proximity:

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
• Has the offender actually commenced the execution; that is to say, has he taken a step in the actual crime itself?

Question 15

Punishment for Attempted Murder

Section 173CA61

Answer 15

s173 Attempt to Murder

Every one who attempts to commit murder is liable imprisonment for a term not exceeding 14 years.

Question 16

Counselling or Attempting to Procure Murder

Section 174CA61

Answer 16

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.

Murder Committed - Parties to under s66(1)(d) for Murder.

Murder Attempted - Parties to under s66(1)(d) for Attempted Murder.

Question 17

Conspiracy to Murder

Section 175CA61

Answer 17

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 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 and in circumstances that would amount to murder if the act were committed in New Zealand.

Section 175 may apply regardless of whether murder is committed or not

Question 18

Accessory After the Fact to Murder

Section 176CA61

Answer 18

S176 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.

Question 19

Accessory After the Fact

Section 71(1)CA61

Answer 19

s71 Accessory After the Fact

(1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.

Case Law:

R v Mane
For a person to be an accessory the acts done by the person must be after the completion of the offence. One cannot be convicted of being an accessory after the fact of murder when the acts reus of the alleged offence was wholly completed before the offence of homicide was complete.

Question 20

Manslaughter

Answer 20

Culpable Homicide that does not amount to murder.

Voluntary manslaughter:
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH.

Involuntary manslaughter:
Covers types 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 to 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 part was a part of a suicide pact.

Question 21

Killing in a Sudden Fight

Answer 21

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

• Self defence (the proper verdict is acquittal)
• The requisite mens rea for a murder charge (fight that negates the required mens rea for murder, the proper verdict is manslaughter).

Question 22

Manslaughter by Unlawful Act

Answer 22

s160(2)

Four point test for proving an unlawful act for manslaughter:

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.

Question 23

Manslaughter by Negligence

Answer 23

Negligence while in charge of using trains, factory machinery, mines, motor vehicles, ships or weapons, or while administering medical or surgical treatment.

Examples:

1. No defence against a manslaughter charge to say deceased agreed to ride on the bonnet of a car you drove dangerously, knowing the deceased as in that position.
2. Even if the deceased contributed to their own death by their own negligence, this does not afford the defendant a defence against manslaughter by negligence. Contributory defence is no defence.
3. Negligent drivers: dangerous or reckless driving causing death. Manslaughter if offender was playing chicken with a train and passenger dies.

Question 24

Gross Negligence

Answer 24

The prosecution must prove a “very high degree” of negligence or “gross negligence” for a conviction for Manslaughter under s150A(1).

Question 25

Section 150A CA61

Answer 25

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 the sections 151, 152,153, 155, 156, 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.

Objective test

Question 26

Punishment for Manslaughter

Section 177 CA61

Answer 26

s177
Punishment for Manslaughter

(1) Everyone who commits manslaughter is liable to imprisonment for life.