Murder & Manslaughter Offences Flashcards
Outline murder legislation s167
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 by 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.
Outline further murder legislation s168
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 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 willfully stops the breath of any person for any of the purposes aforesaid and death ensues from such stopping of breath.
Define intent
In a criminal law context there are two specific types of intent. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.
If you are charging an offender with murder under s167 you must show that the defendant…?
- intended to cause death or
- knew that death was likely to ensue or
- was reckless that death would ensue
Case law R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
To show the defendants state of mind to meet the provision of s167(b) you must establish that the defendant..?
- intended to cause bodily injury
- knew the injury was likely to cause death
- was reckless as to whether death ensued or not
Case law 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 recognize a “real or substantial risk” that death would be caused.
Case law 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.
Discuss joint responsibility
It is not necessary to show that the secondary party knew that death was a probable consequence of carrying out their purpose. Rather it must be shown that the secondary party knew it was a probable consequence that the principal might do that act that would, if death ensued, bring their conduct in to s168
Penalty for murder
s172 Imprisonment for life s102 Sentencing Act 2002 an offender who is convicted of murder must be sentence to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be unjust. Court must give a written reason
Attempted murder charge under s173
What is the Crown responsible for establishing?
The Crown is responsible for establishing the mens rea and actus reus as set out in s72 (definition of attempts)
Case law R v Murphy
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.
Case law R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when 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.
Punishment for attempted murder
14 years imprisonment
s174 Counselling or attempting to procure murder legislation
Incites, counsels, or attempts to procure
any person to murder any other person in NZ, when that murder is not in fact committed.
10 yrs imprisonment
s175 Conspiracy to murder
conspires or agrees
with any person to murder any other person whether in NZ or elsewhere.
May apply regardless of whether murder committed or not
10 yrs imprisonment
Punishment for accessory after the fact to murder
s176
7 years imprisonment
Case law 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.
Outline the four point test for proving an unlawful act for manslaughter (Newbury and Jones)
- the defendant must intentionally do an act
- the act must be unlawful
- the act must be dangerous
- the act must cause death
What is the major departure test?
The major departure test requires a high degree of negligence/gross negligence.
This must be shown when the case relates to an unlawful act or an omission.
s150A - Standard of care applicable to persons under legal duty or performing unlawful acts legislation summary
s150A (2)
a person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, 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 that unlawful act.
Punishment for manslaughter
Imprisonment for life
Define the essence of gross negligence
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.
What are the two distinct types of manslaughter
- voluntary manslaughter
- involuntary manslaughter
