Murder & Manslaughter Offences Flashcards
S167 defines Murder in 4 different cases. What are they?
If the offender… (a)-(d)
(a) means to cause the death of the person killed
(b) means to cause BI that is known by them as likely to cause death and is reckless whether death ensues or not
(c) means to a or b and by accident or mistake kills another person
(d) does an act he knows to be likely to cause death, and kills someone, though he may have desired not to hurt anyone
s168 further defines murder
“Culpable homicide is also murder in the following cases, whether the offender means or does not mean to cause death…(a)-(c)
(a) if he means to cause GBI for the purpose of
- facilitating commission of offences…
- facilitating the flight/avoiding detection of offender for the purpose of resisting lawful apprehension
- and death ensues
(b) administers any stupefying or overpowering thing and death ensues
(c) wilfully stops breathing of any person and death ensues
Intent
What two case law are relevant
Cameron v R “recklessness is est if…”
R v Piri “recklessness here involves…”
Intent is defined as…
An intention to do a deliberate act to get a specific result
What is meant by “deliberate act” in the context of intent?
The act or omission must be more than involuntary or accidental
If you are charging an offender under s167 for Murder, you must show one of 3 intentions… what are they?
- they intended to cause death
- they knew death was likely to ensue
- they were reckless that death would ensue
Define recklessness
Consciously and deliberately taking an unjustified risk
Explain the subjective vs objective elements of recklessness,
It must be proved the defendant:
Was are of the risk and proceeded regardless (subjective)
And that it was unreasonable to do so (objective)
Cameron v R
Recklessness is est if…
(a) the defendant recognised there was a real possibility that (i) his/her actions would bring about the proscribed results and/or (ii) the proscribed circumstances existed and
(b) having regard to that risk those actions were unreasonable
Give an example of low social utility and high social utility (in the context of recklessness)
Low social utility: Russian roulette
High social utility: surgeon doing risky but potentially lifesaving surgery
R v Piri
Recklessness here involves a conscious deliberate risk taking
The degree of risk of death foreseen by the accused must be more than negligible or remote.
The accused must recognise a real or substantial risk that death would be caused.
167(d) defined murder as including “killing in pursuit of an unlawful object”
What’s the classic example of this and What case law is relevant here?
Death being caused by blowing up a prison wall to liberate prisoners
R v Desmond “not only must the object be unlawful…”
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
What sections apply when people who are in the course of carrying out an unlawful purpose kill someone
66 Parties to
168 murder defined further
Explain s66(2) parties to offences
Where 2 or more person form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is 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 probably consequence of the common purpose
(Under s66 parties) Do you have to show that the secondary party knew the death was a probably consequence of their carrying out the primary purpose?
No!
Rather, it must be shown that the secondary party knew it was a probably consequence that the principal might do an act that would, if death ensued, bring their conduct within s168.
What is the punishment for murder?
Imprisonment for life
Subject to s102 sentencing act
What does s102 of the sentencing act mean for the life imprisonment of murderers?
An offender who is convicted of murder must be sentenced to imprisonment for life
Unless! Given the circumstances of the offence and offender a life sentence would be manifestly unjust
If the court doesn’t impose life, it must give written reasons for doing so
S173 attempted murder
What two case laws are relevant to attempts?
R v Murphy -“when proving an attempt…”
R v Harpur -“the court may have regard to…”
What is the definition of attempts as per s72 ?
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 possible or not)
R v Murphy
When proving an attempt, it must be shown that the accused’s intention was to commit the substantive offence
Ie for attempted murder the crown must establish the intention to kill
Why is attempted murder one of the hardest offences to prove ?
The crown has to prove -beyond reasonable doubt - that the offender intended to kill the person
What is meant by sufficiently approximate to the full offence?
The defendant must have started to commit the full offence and have gone beyond the phase of mere preparation
R v Harpur
The court may have regard to the conduct viewed cumulatively to the point when the conduct in question stops
What two questions should be asked for the test for proximity? (attempts)
- has the offender done anything more than getting himself into position from which he could embark on an actual attempt?
- Has the offender actually commenced execution? Has he taken a step in the actual offence?
Proximity is a question of ______
Law. Decided by judge
What is the punishment for attempted murder?
14 years
What is the punishment for counselling or attempting to procure murder?
10 years
Counselling or attempting to procure a murder applies where murder has or has not in fact being committed?
Has not! If it had been committed (or attempted) they’d be liable as a party
What is the punishment for conspiracy to murder?
10 years
Counselling or attempting to procure murder versus conspiracy to murder
Does it matter if it’s not in New Zealand?
You can be liable for conspiracy to murder regardless of where the murder is to take place.
However to be guilty of counselling or attempting to procure murder, the person has to be in New Zealand
Does the murder have to be committed for conspiracy to murder to apply?
Conspiracy to murder applies regardless
What is the punishment for accessory after the fact to murder?
Seven years
Which case law applies to accessories after the fact?
R v Mane
For a person to be an accessory the offence must be complete at the time of criminal involvement
What is the difference between voluntary manslaughter and involuntary manslaughter?
Voluntary manslaughter has some kind of mitigating circumstances such as suicide pact which reduces what would otherwise be murder to manslaughter even though the defendant may have intent to kill.
Involuntary manslaughter is everything where death is caused by an unlawful act or gross negligence but obviously with no intention to kill or cause GBH.
In the case of a killing in a sudden fight you need to consider two things?
Was there an instance of self-defence? (Acquittal)
Was there mens rea for murder for a murder charge? (If not, manslaughter)
What is in the four-point test for proving and unlawful act for manslaughter i.e. careless driving causing death
- The defendant must intentionally do an act
- The act must be unlawful
- The act must be dangerous
- The act must cause death
What are some examples of manslaughter by negligence?
Trains, factory machinery, mines, motor vehicles, ships, weapons, medical/surgical treatment
Would it be a defence against a manslaughter charge to say the deceased agreed to ride on the bonnet of the car drove dangerously?
No, the consent of the person who died is no defence
What is meant by “contributory negligence is no defence”
Even if the deceased contributed to their own death by their own negligence this does not give the defendant a defence
When it comes to negligent drivers, discuss why you may charge under the land transport act instead of with manslaughter?
Juries have been reluctant to convict negligent drivers of manslaughter.
In some cases there is a little point charging the person with manslaughter as the driver may receive a lesser penalty then for example the Max. 10 years contained in the land transport act.
However on occasion, particular circumstances including aggravating factors may indicate a charge of manual as preferable .
What is meant by gross negligence
A very high degree of negligence but this is not defined by statute
What is the major departure test?
Relevant to the term gross negligence, this is an objective test and all circumstances of the case must be considered.
What is the punishment for manslaughter?
Imprisonment for life.
However, the judge may impose any penalty from a fine to life.
Name four of the associated murder charges spoken about in this chapter
- Attempt to murder (14)
- Counselling or attempting to procure murder (10)
- Conspiracy to murder (10)
- Accessory after the fact of murder (7) - R v Mane
