Murder And Manslaughter Offences

Question 1

S167 CA61 Murder

Answer 1

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, thereby kills any person, though he may have desired that his object should be effected without hurting any one.

Question 2

S168 (1) CA61 Further definition of murder.

Answer 2

(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 means to cause grevious bodily injury for the purpose of facilitating the commission 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

Define deliberate act?

Answer 3

Intent means that the act or omission must be done deliberately, it must be more than involuntary or accidental.

Question 4

What must be proven for a charge under S167?

Answer 4

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 then the offence is manslaughter unless its infanticide (S178)

Question 5

R v Harney

Answer 5

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

Question 6

What must you prove for a charge under 167(b)?

Answer 6

The defendant:

• intended to cause bodily injury to the deceased
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not

Question 7

R v Piri

Answer 7

Recklessness involve 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 8

R v Desmond

Answer 8

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 9

167(a)

Answer 9

(a) if the offender means to cause the death of the person killed.

Question 10

167(b)

Answer 10

(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.

Question 11

167(c)

Answer 11

(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.

Question 12

167(d)

Answer 12

(d) if the offender for any unlawful object does an act that he knows to be likely to cause death, thereby kills any person, though he may have desired that his object should be effected without hurting any one.

Question 13

168(1)(a)

Answer 13

(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 means to cause grevious bodily injury for the purpose of facilitating the commission 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.

Question 14

168(1)(b)

Answer 14

(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:
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:

Question 15

168(1)(c)

Answer 15

(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:
(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 16

S66(2)

Answer 16

Where 2 or more persons form a common intention to prosecute an 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 as a probable consequence of the prosecution of the common purpose.

Question 17

What must a secondary party know to be convicted of murder under S66?

Answer 17

Must know it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of S168.
It is not necessary to show they knew death was a probable consequence of their carrying out their primary purpose.

Question 18

What is the punishment for murder?

Answer 18

S172 CA61

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

Question 19

S102 Sentencing Act 2002

Answer 19

(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 is 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.

Question 20

S173

Answer 20

Attempted murder

Question 21

S72(1) Attempts

Answer 21

(1) every one 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.

Question 22

S72(2)

Answer 22

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 to remote to constitute and attempt to commit it, is a question of law.

Question 23

S72(3)

Answer 23

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 24

R v Murphy (attempts)

Answer 24

When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For attempted murder the crown must show an actual intent to kill.

Question 25

Explain the “all but” rule in relation to attempts?

Answer 25

The defendant must have started to commit the whole offence and have gone beyond the phase of mere preparation.

Question 26

R v Harpur

Answer 26

The Court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative.

Question 27

attempted murder?

Answer 27

S173 CA61

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

Question 28

Counselling or attempting to procure murder?

Answer 28

S174 CA61
10 years
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.

Question 29

Conspiracy to murder?

Answer 29

S175(1) CA61
10 years
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.

Question 30

Accessory after the fact to murder?

Answer 30

S176 CA61
7 years
Everyone who is an accessory after the fact to murder.

Question 31

Define accessory after the fact?

Answer 31

S71(1)CA61
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 for him to escape after arrest or to avoid arrest or conviction.

Question 32

R v Mane

Answer 32

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 33

Voluntary manslaughter?

Answer 33

Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter. There is an intent to kill or gbh.

Question 34

Involuntary manslaughter?

Answer 34

Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. There is no intent to kill or gbh.

Question 35

Common instances of manslaughter?

Answer 35

Killing in a sudden fight.
Manslaughter by unlawful act.
Manslaughter by negligence

Question 36

What must be you consider in regard to killing in a sudden fight?

Answer 36

Self defence.

The requisite mens rea for a murder charge.

Question 37

What is the four point test for manslaughter by an unlawful act (Newbury and Jones)?

Answer 37

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 38

Examples of manslaughter by negligence?

Answer 38

Negligence while in charge of or using:
Trains
Factory machinery
Mines
Motor vehicles
Ships
Weapons 
while administering medical or surgical treatment.

Question 39

Define negligence?

Answer 39

Not defined by statute, but prosecution must prove a very high degree of negligence or gross negligence.

Question 40

S150A(1) CA61 - standard of care applicable to persons under legal duties or performing unlawful acts.

Answer 40

(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 liability offence.

Question 41

S150A (2)CA61

Answer 41

(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 the unlawful act.

Question 42

The major departure test?

Answer 42

Requires a high degree of negligence corresponding to the common law standard of gross negligence.

Question 43

Objective test for negligence (R v Adomako)?

Answer 43

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.

Question 44

Punishment for manslaughter?

Answer 44

S177 CA61

Life imprisonment.