Part 2 Murder / Manslaughter

Question 1

Murder Defined

Answer 1

s167

(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

Further Definition of Murder

Answer 2

s168

If the offender does 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 grevious 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 3

Intent

Answer 3

There are two specific types of intent:

1. Deliberate act: act or omission must be done deliberately. The act or omission must be more than involuntary or accidential
2. Intent to produce a result: Intent to produce a specific result . What is the aim, object or purpose.

Question 4

Intent to Cause Death

Answer 4

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

If such intent is not present the offence is manslaughter or infanticide

Question 5

Bodily Injury Defined

Answer 5

Grievous bodiy injury - means harm that is very serious, such as injury to a vital organ

Question 6

Recklessness Defined

Answer 6

• Acting recklessly involves consciously and deliberately taking of an unjustifiable risk.*
• It must be proved not only that the defendant was aware of the risk and proceeded regardless (subjective test), but also that it was unreasonable for him to do so (objective test).*

To meet s167(b), you must establish:

• Intended to cause bodily injury to the deceased
• Knew the injury was likely to cause death
• Was reckless as to whether death ensued or not

Question 7

Cameron v R (Case law - Recklessness)

Answer 7

Recklessness is established if:

(a) (subjective test) 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) (Subjective/Objective test) having regard to that risk those actions were unreasonable.

Question 8

Further discussion in Cameron v R - (Objective/Subjective test)

Answer 8

Part (a) -

• Is completely subjective. A real possibility is the same as something that ‘could well happen’
• Require that the defendant recognised the risk the offence anticipates as being possible.

Part (b) -

• Is subjective and objective
• If the actions of the defendant have no social utility, the running of any risk subjectively appreciated is unreasonable and thus reckless.
• Social utility - Socially accepted circumstances where the risk of bodily injury or death is likely to ensue, e.g: heart surgery vs game of russian roulette.

Question 9

R v Piri (Case law - Recklessness)

Answer 9

Recklessness 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 negligble or remote. The accused must recognise a ‘real and substantial risk’ that death would be caused.

Question 10

Killing in pursuit of an unlawful object

Answer 10

s167(d)

• The distinction is made between an unlawful object and an object that may be illicit or immoral. Where the object is unlawful, the actions of the defendant are covered by para (d) provided the defendant knows that their action is likely to cause somebody’s death.*
• Example: Where one causes another death by blowing up a prison wall to liberate prisoners.* - using explosives to destroy another property is unlawful.

Question 11

R v Desmond (Case law - Killing in pursuit of an unlawful object)

Answer 11

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 12

Murder committed in the execution of a common purpose

Answer 12

• Sections 66(2) - parties to offences and s168 provide for the criminal responsibility of people who are in the course of carrying out an unlawful purpose when one of them kills someone.
• s168 must be read in conjunction with s158 - 166
• The secondary party must know the principal party might do the act that causes death.

Question 13

Joint Responsibility

Answer 13

• Whether reliance is placed on ss(1) or (2) of s66, it is not necessary to show that the secondary party knew the death was a probable consequence of their carrying out the primary purpose.
• It must be shown that the secondary party knew it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within s168.

Question 14

Attempted Murder

Answer 14

s173

Attempted murder is a seperate offence. It is for the Crown to establish the mens rea and actus reus as set out in s72.

Penalty: 14 years imprisonment

Question 15

Attempts

Answer 15

s72

(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 attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 16

Intent must be established for Attempted Murder

Answer 16

• The requirement of intent under s72(1) - only an intention to commit the offence will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.
• This is one of the most difficult offences to prove beyond a reasonable doubt.

Question 17

R v Murphy (Case law - Intention required for Attempted Murder)

Answer 17

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 18

Proximity Defined

Answer 18

• To prove an attempt, the defendant must have done or omitted to do some act(s) that is/are sufficiently proximate to the full offence.
• They must have gone beyond mere preparation.
• Independent acts, which if looked at in isolation, might simply be construed as preparatory, can take on a different context when looked at collectively and therefore amount to criminal amount.
• Proximity is a question of law and is decided by the judge.

Question 19

Test for Proximity

Answer 19

• Has the offender done anything more than putting himself into a position from which he could embark on an actual attempt?
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?

Question 20

R v Harpur (Case law - Attempts)

Answer 20

The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops…the defendant’s conduct may be considered in its entirety. Considering how much remains to be done…is always relevant, though not determinative.

Question 21

Counselling or Attempting to Procure Murder

Answer 21

s174

• Everyone is liable to imprisonment for a term 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.*
• Where murder is attempted, in incitier, counsellor or procurer will be liable under s66 (1)(d) to s173.*

Question 22

Conspiracy to Murder

Answer 22

s175

(1) Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in NZ or elsewhere.

May apply regardless if murder is committed or not

Question 23

Accessory After the Fact to Murder

Answer 23

s176

Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.

Question 24

R v Mane (Case law - AATF)

Answer 24

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 AATF to murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.

Question 25

Two types of Manslaughter

Answer 25

* **Voluntary Manslaughter -** *Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intented to kill or cause GBH.* * **Involuntary Manslaughter -** *Covers 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 GBH.*** * *Killing as part of a suicide pact is reduced to Manslaughter.*

Question 26

Manslaughter by An Unlawful Act

Answer 26

The four-point test: 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 27

Manslaughter by Negligence

Answer 27

Situations may give rise to charge of manslaughter by negligence are: * In charge of a train, factory machinery, mines, vehicles, ships, weapons, administering medical or surgical treatment * The defendant will have been engaged in a dangerous act or in charge of dangerous thing, s155 and 156 applies.

Question 28

Standard of Care Applicable to Persons under Legal Duties or Performing Unlawful Acts

Answer 28

**s150A** **(1)(a)** *The legal duties specified in any of sections 151, 152, 153, 155, 156 & 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 section applies only 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***

Question 29

Gross Negligence - Objective Test

Answer 29

* Test of gross negligence is **objective** and **defendant's state of mind** is not a prerequisite to a conviction of manslaughter by gross negligence * Test to be applied is whether the **defendant has been negligent** and **whether the negligence has been a major departure**

Question 30

Gross Negligence - Major Departure

Answer 30

* Requires a high degree of negligence, corresponding to the common law standard of gross negligence * Criminal liability under s160(2)(a) for manslaughter by negligent omission to perform or observe any of the legal duties specified in s150A(1)(a) * Applies where a negligent omission results in endangerment or injury contrary to s153(2)