Murder & Manslaughter

Question 1

Section 167 CA61 - Give two circumstances where culpable homicide is 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, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.

Question 2

To show that the defendant’s state of mind meets the provisions of s167(b), what must you establish?

Answer 2

That the defendant meant to cause the person killed bodily injury that is known to the defendant to be likely to cause death, and is reckless whether death ensues or not.

Question 3

If you are charging an offender with murder under s167 CA61, you must show that the defendant:

Answer 3

• Intended to cause death; or
• Knew that death was likely to ensue; or
• Was reckless that death would ensue

Question 4

Outline s168 CA61 - Further definition of murder

Answer 4

(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 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 5

What was held in R v Cameron regarding recklessness?

Answer 5

Recklessness is established if:

(a) The defendant recognised that there was a real possibility that:

(i) His or her actions would bring about the proscribed result; and/or

(ii) That the proscribed circumstances existed; and

(b) having regard to that risk those actions were unreasonable.

Question 6

What was held in R v Piri regarding recklessness?

Answer 6

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 7

What was held in R v Desmond regarding s167(d) CA61?

Answer 7

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 8

S168(1)(a) CA61 refers to the term “grievous bodily injury”. What does this mean and give an example of such an injury:

Answer 8

Grievous bodily injury means harm that is very serious, such as injury to a vital organ.

An example would be stabbing someone in the heart.

Question 9

Why is attempted murder one of the most difficult offences in the CA61 to prove beyond reasonable doubt (R v Murphy)?

Answer 9

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.

Question 10

In the test for proximity, Simester and Brookbanks suggest the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

Answer 10

• 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 offence itself?

Question 11

Outline proximity in relation to attempts:

Answer 11

Generally, to prove an attempt the defendant must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence.

Effectively, the defendant must have started to commit the full offence and gone beyond the phase of mere preparation.

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.

Question 12

S173 CA61 - What is the penalty for attempted murder?

Answer 12

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

Question 13

List the differences between counselling or attempting to procure murder (s174), and conspiracy to murder (s175):

Answer 13

• Counselling or attempting to procure murder requires that the offence is to be committed in New Zealand, whereas with conspiracy to murder, the murder can take place in New Zealand or elsewhere.
• Counselling or attempting to procure murder only applies if the murder is not in fact committed, whereas conspiracy to murder applies regardless of whether murder is committed or not.

Question 14

What are the ingredients to accessory after the fact to murder?

Answer 14

• Knowing any person to have been party to murder
• Receives, comforts, or assists that person; OR
• Tampers with or actively suppresses evidence against that person
• In order to enable him to escape after arrest or to avoid conviction

Question 15

What is the penalty for accessory after the fact to murder?

Answer 15

7 years imprisonment.

Question 16

What was held in R v Mane regarding accessory after the fact to murder?

Answer 16

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 reps of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 17

What is voluntary manslaughter?

Answer 17

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 grievous bodily harm.

Question 18

What is involuntary manslaughter?

Answer 18

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.

Question 19

What is the four-point test for proving an unlawful act for manslaughter (IUDD)?

Answer 19

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 20

Outline s150A CA61:

Answer 20

Before a conviction can be obtained for manslaughter where one of the sections referred to in s150A(1) the prosecution must prove a “very high degree” of negligence or “gross negligence”.

Question 21

John is playing rugby. He decides to make a hard tackle on an opponent which results in that opponent breaking their neck and dying. Would John be charged with any offence, and if so, what offence?

Answer 21

• When death occurs during a lawful game or contest, such as football or hockey, the death is treated as non-culpable homicide unless the defendant’s actions were likely to cause serious injury, in which case the defendant is guilty of manslaughter.
• In this instance, it would depend on the nature of the tackle. If the tackle was extremely dangerous and likely to cause death, then he would be guilty of manslaughter. If the tackle was routine but the opponent sustained the injuries by freak accident or in an unforeseen way, such as simply as landing in an unfortunate position, then John would not be culpable.