Murder and Manslaughter Offences

Question 1

Murder Defined

Legislation

Culpable homicide is murder in each of the following cases:

Answer 1

S167 CA61

(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.

Question 2

Further Definition of Murder

Legislation

(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:

Answer 2

S168 CA61

(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 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 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

R v Harney

Recklessness

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

R v Piri

Recklessness in murder

Recognition of a real or substantial risk

Answer 5

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 recognise a “real or substantial risk” that death would be caused

Question 6

R v Desmond

Killing in pursuit of an unlawful object, knowledge

Answer 6

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.

Question 7

Punishment of Murder

Legislation

(1) Every one who……

Answer 7

S172 CA61

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

Question 8

R v Murphy

Attempted murder

Proving intent

Answer 8

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

Of note

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

Question 9

R v Harpur

Defendant’s conduct

Answer 9

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.

Question 10

Punishment of attempted murder

Legislation

Every one who…..

Answer 10

S173 CA61

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

Question 11

Counselling or attempting to procure murder

Legislation

Everyone is liable…..

Answer 11

S174 CA61

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.

Of note

Section 174 applies where murder is not in fact committed. If the person incited or counselled commits murder, the parties’ provisions of s 66(1)(d) will apply to the inciter or counsellor.

Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s 66(1)(d) to an attempt to murder under s 173.

Question 12

Conspiracy to murder

Legislation

Everyone is liable……

Answer 12

S175 CA61

(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.

Of note

(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.

Question 13

Punishment for accessory after the fact to murder

Legislation

Everyone is liable….

Answer 13

S176 CA61

Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.

Question 14

R v Mane

Accessory after the fact to murder

Answer 14

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.

Question 15

Punishment of manslaughter

Legislation

Everyone who…..

Of note only

Answer 15

S177 CA61

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

Of note

However, the judge, taking all matters into consideration, may impose any penalty from a fine to life imprisonment, depending on the circumstances.

Question 16

Involuntary Manslaughter

Answer 16

• Covers those 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 grievous bodily harm.

Of note

Manslaughter, then, includes culpable homicide that:
• does not come within s167 or s168
• comes within ss167 and 168, but is reduced to manslaughter because the
killing was a part of a suicide pact as defined in s180(3) of the Crimes Act 1961.

Question 17

Intent with Murder (S167)

Answer 17

-intent to cause death
OR
- Knew that death was likely to ensue
OR
-Was reckless that death would ensue

Question 18

Joint responsibility

Answer 18

S66 (1) or (2)

Not necessary to show that the secondary party knew the death was a probable consequence of their carrying out the primary purpose.
Knew that it was a probable consequence.

Question 19

Voluntary Manslaughter

Answer 19

suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended ti kill or cause grievous bodily harm.

Question 20

Manslaughter by unlawful act

Answer 20

160(2)

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