Murder & Manslaughter Offences

Question 1

S167 defines Murder in 4 different cases. What are they?
If the offender… (a)-(d)

Answer 1

(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

Question 2

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)

Answer 2

(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

Question 3

Intent

What two case law are relevant

Answer 3

Cameron v R “recklessness is est if…”

R v Piri “recklessness here involves…”

Question 4

Intent is defined as…

Answer 4

An intention to do a deliberate act to get a specific result

Question 5

What is meant by “deliberate act” in the context of intent?

Answer 5

The act or omission must be more than involuntary or accidental

Question 6

If you are charging an offender under s167 for Murder, you must show one of 3 intentions… what are they?

Answer 6

• they intended to cause death
• they knew death was likely to ensue
• they were reckless that death would ensue

Question 7

Define recklessness

Answer 7

Consciously and deliberately taking an unjustified risk

Question 8

Explain the subjective vs objective elements of recklessness,

Answer 8

It must be proved the defendant:

Was are of the risk and proceeded regardless (subjective)

And that it was unreasonable to do so (objective)

Question 9

Cameron v R

Answer 9

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

Question 10

Give an example of low social utility and high social utility (in the context of recklessness)

Answer 10

Low social utility: Russian roulette

High social utility: surgeon doing risky but potentially lifesaving surgery

Question 11

R v Piri

Answer 11

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.

Question 12

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?

Answer 12

Death being caused by blowing up a prison wall to liberate prisoners

R v Desmond “not only must the object be unlawful…”

Question 13

R v Desmond

Answer 13

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 14

What sections apply when people who are in the course of carrying out an unlawful purpose kill someone

Answer 14

66 Parties to

168 murder defined further

Question 15

Explain s66(2) parties to offences

Answer 15

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

Question 16

(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?

Answer 16

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.

Question 17

What is the punishment for murder?

Answer 17

Imprisonment for life
Subject to s102 sentencing act

Question 18

What does s102 of the sentencing act mean for the life imprisonment of murderers?

Answer 18

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

Question 19

S173 attempted murder

What two case laws are relevant to attempts?

Answer 19

R v Murphy -“when proving an attempt…”

R v Harpur -“the court may have regard to…”

Question 20

What is the definition of attempts as per s72 ?

Answer 20

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)

Question 21

R v Murphy

Answer 21

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

Question 22

Why is attempted murder one of the hardest offences to prove ?

Answer 22

The crown has to prove -beyond reasonable doubt - that the offender intended to kill the person

Question 23

What is meant by sufficiently approximate to the full offence?

Answer 23

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

Question 24

R v Harpur

Answer 24

The court may have regard to the conduct viewed cumulatively to the point when the conduct in question stops

Question 25

What two questions should be asked for the test for proximity? (attempts)

Answer 25

1. has the offender done anything more than getting himself into position from which he could embark on an actual attempt?
2. Has the offender actually commenced execution? Has he taken a step in the actual offence?

Question 26

Proximity is a question of ______

Answer 26

Law. Decided by judge

Question 27

What is the punishment for attempted murder?

Answer 27

14 years

Question 28

What is the punishment for counselling or attempting to procure murder?

Answer 28

10 years

Question 29

Counselling or attempting to procure a murder applies where murder has or has not in fact being committed?

Answer 29

Has not! If it had been committed (or attempted) they’d be liable as a party

Question 30

What is the punishment for conspiracy to murder?

Answer 30

10 years

Question 31

Counselling or attempting to procure murder versus conspiracy to murder

Does it matter if it’s not in New Zealand?

Answer 31

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

Question 32

Does the murder have to be committed for conspiracy to murder to apply?

Answer 32

Conspiracy to murder applies regardless

Question 33

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

Answer 33

Seven years

Question 34

Which case law applies to accessories after the fact?

Answer 34

R v Mane

For a person to be an accessory the offence must be complete at the time of criminal involvement

Question 35

What is the difference between voluntary manslaughter and involuntary manslaughter?

Answer 35

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.

Question 36

In the case of a killing in a sudden fight you need to consider two things?

Answer 36

Was there an instance of self-defence? (Acquittal)

Was there mens rea for murder for a murder charge? (If not, manslaughter)

Question 37

What is in the four-point test for proving and unlawful act for manslaughter i.e. careless driving causing death

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

What are some examples of manslaughter by negligence?

Answer 38

Trains, factory machinery, mines, motor vehicles, ships, weapons, medical/surgical treatment

Question 39

Would it be a defence against a manslaughter charge to say the deceased agreed to ride on the bonnet of the car drove dangerously?

Answer 39

No, the consent of the person who died is no defence

Question 40

What is meant by “contributory negligence is no defence”

Answer 40

Even if the deceased contributed to their own death by their own negligence this does not give the defendant a defence

Question 41

When it comes to negligent drivers, discuss why you may charge under the land transport act instead of with manslaughter?

Answer 41

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 .

Question 42

What is meant by gross negligence

Answer 42

A very high degree of negligence but this is not defined by statute

Question 43

What is the major departure test?

Answer 43

Relevant to the term gross negligence, this is an objective test and all circumstances of the case must be considered.

Question 44

What is the punishment for manslaughter?

Answer 44

Imprisonment for life.
However, the judge may impose any penalty from a fine to life.

Question 45

Name four of the associated murder charges spoken about in this chapter

Answer 45

1. Attempt to murder (14)
2. Counselling or attempting to procure murder (10)
3. Conspiracy to murder (10)
4. Accessory after the fact of murder (7) - R v Mane