Murder & Manslaughter Offences

Question 1

Crimes Act 1961

Section 167- Murder examples

Answer 1

Section 167 - (Murder examples)
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.

Question 2

Crimes Act 1961

Section 168 - Further examples of murder

Answer 2

Section 168

(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 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

Cameron v R

Answer 3

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 for that risk those actions were unreasonable.

Question 4

R v Piri

Answer 4

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 recognise a ‘real and substantial risk’ that death would be caused.

Question 5

R v Desmond

Answer 5

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 known that his knowledge accompanied the act causing death.

Question 6

Crimes Act 1961

Section 66

Answer 6

Section 66 - Parties to offences
(2) 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 to be a probable consequence of the prosecution of the common purpose.

Question 7

Crimes Act 1961,

Section 172 - Punishment of murder

Answer 7

Section 172

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

Question 8

Sentencing Act 2002
Section 102
- Presumption in favour of life imprisonment for murder

Answer 8

(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 would be manifestly unjust.
(2) If 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 9

Section 72 - Definition of Attempts

Answer 9

(1) 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.
(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 10

R v Murphy

Answer 10

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 11

R v Harpur

Answer 11

The court may have regard to the conduct viewed cumulatively up until 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 12

Crimes Act 1961

Section 173- Attempt to Murder

Answer 12

Section 173

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

Question 13

Section 174

Crimes Act 1961

Answer 13

Section 174 -
Counselling or attempting to procure murder

Everyone is liable for a term of imprisonment not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in NZ, when that murder is not in fact committed.

Question 14

Crimes Act 1961

Section 175 - Conspiracy to murder

Answer 14

175 - Conspiracy to Murder
(1) Everyone is liable to 10 years who conspires or agrees with any other person to murder any other person, whether or not the murder is to take place in NZ or elsewhere.

(2) For the purpose 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.

Question 15

Punishment for accessory after the fact

Answer 15

Section 176
Everyone is liable to imprisonment not exceeding 7 years who is an accessory after the fact to murder.

*Definition of accessory after the fact is given in section 71(1) of the Crimes Act 1961

Question 16

R v Mane

Answer 16

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 17

Voluntary Manslaughter

Answer 17

There are 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

Involuntary Manslaughter

Answer 18

Covers types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there is no intention to kill or cause grievous bodily harm.

Question 19

Section 160(2)(a)

Manslaughter by unlawful act

Answer 19

An English matter, Newbury and Jones outlines a 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 20

Crimes Act 1961
Section 150A
Standard of care applicable to persons under legal duties or performing unlawful acts

Answer 20

(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 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 departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.

Question 21

Section 150A examples

Answer 21

Allegation of culpable homicide have been supported where the offender has caused death by:

• committing arson
• giving a child an excessive amount of alcohol to drink
• placing hot cinders and straw on a drunk person to frighten them
• supplying heroin to a person who subsequently dies from an overdose
• throwing a large piece of concrete from the motorway overbridge into the path of an approaching car
• conducting an illegal abortion where the mother dies

Question 22

Gross Negligence / Major Departure

Answer 22

• Gross negligence must be shown whether the case relates to an unlawful act or an omission.
• The test to be applied to determine whether the defendant has been negligent and whether the negligence has been a major departure is Objective.
• All circumstances of the case must be considered and a defendant’s state of mind may be relevant to whether there was gross negligence
• As discussed in R v Adomako is whether 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 23

Section 177 - Punishment of Manslaughter

Answer 23

liable to imprisonment for life.

However the judge may impose any penalty depending on the circumstances.

Question 24

Associated Murder Charges

Answer 24

• s173 Attempt to Murder
• s174 Counselling or Attempting to Procure Murder
• s175 Conspiring to Murder
• s176 Accessory After the Fact to Murder