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CIB013 - Homicide > Progress Tests > Flashcards

Progress Tests Flashcards

1
Q

What is an unlawful act?

A

Means a breach of any Act, regulation, rule or bylaw.

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2
Q

Define homicide Section 158

A

Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

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3
Q

Define Killing of a child Section 159

A

159 - Killing of a child
(1) a child becomes a human being within the meaning of this act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not

(2) The killing of such a child is homicide if it dies in consequences of injuries received before, during, or after birth.

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4
Q

Define Culpable homicide Section 160

A

Culpable homicide means the killing is blameworthy.

Culpable homicide

(1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person

(a) by an unlawful act; or
(b) by an omission without lawful excuse to perform or observe any legal duty; or
(c) by both combined; or
(d) By causing that person by threats or fear of violence, or by deception, to do an act which causes causes his death; or
(e) By wilfully frightening a child under the age of 16 years or a sick person.
(3) Expect as provided in section 178 of this Act. culpable homicide is either murder or manslaughter
(4) Homicide that is not culpable is not an office.

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5
Q

What is the penalty for attempted murder?

A

14 years

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6
Q

In which court does a youth facing a charge of murder/manslaughter appears

A

First appearance in the Youth Court, before immediately being transferred to the High Court for trail.

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7
Q

Disease of the mind if a questions of law for who to determine?

A

Judge. Although medical evidence may testify to their area of expertise, the final call as to whether or not the particular condition is a disease of the mind, is one of the judge to determine.

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8
Q

What the accused’s state of mind was at the time of the offence is a question decided by whom?

A

The jury

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9
Q

Where a charge of infanticide has been laid, who decides on the mothers state of mind?

A

The jury

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10
Q

Proximity is a question of law decided by who?

A

The judge

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11
Q

R v Kamipeli (mens rea)

A

It does not have to be shown that the defendant was incapable of forming the mens reas, merely that, because of their drunken state, they did not have the proper state of mind to be guilty.

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12
Q

Balance of proof for insanity

A

Balance of probabilities

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13
Q

S153 CA61 What is the relevant age of the person who is employed?

A

Under 16

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14
Q

Before a conviction can be obtained for manslaughter, where one of the section referred to is S150A(1) CA61, what must the prosecution prove?

A

A very high degree of negligence or gross negligence.

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15
Q

Written notice of an alibi witness is to be given by the Defendant

A
  • Within 10 working days after the defendant is given notice under S20 CDA08.
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16
Q

R v Cox (Consent)

A

Consent must be full, voluntary, free and informed, given freely and voluntarily by a person in a position to form rational judgement

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17
Q

As a general guideline, most offences within the Crime Act 1961, will require an intent (mens rea) of some kind. Outline a defence that would therefore be generally available:

A

The defence of intoxication will be available to the defence to establish that the defendant did not have the requisite intent (mens rea) to carry out the offence.

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18
Q

Provide an overview of the culpability of persons involved in suicide pacts.

A

Any survivor of a suicide pact is guilty of being a party to a death (if death of another person within the pact ensues)

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19
Q

Outlines section 25 of the Crimes Act 1961, ignorance of the law:

A

The fact an offender is ignorant of the law is not an excuse for any offence committed by him

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20
Q

Section 150A - Standard of care

A

The prosecution must prove a ‘very high degree of negligence’ or ‘gross negligence’

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21
Q

Section 152 - Duty of a parent or guardian

A

Everyone who is a parent or person in place of a parent, who has actual care of charge of a child under the age of 18 is under a legal duty to:

  • Provide that child with the necessities and
  • Take reasonable step ot protect that child from injury
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22
Q

Section 154 - Abandoning a child under 6

A

Everyone is liable to imprisonment not exceeding 7 years

  • Unlawfully
  • Abandons or exposes
  • Any child under age of 6
23
Q

Outline the culpability for children under 10 and children 10 - 13 years old

A

Under 10:
- A child under 10 has an absolute defence to any charge brought again them. Nevertheless, even though a child cannot be convicted, you still have to establish whether or not they are guilty.

Child 10 - 13:
- For children 10 - 13 inclusive, it must be shown that the child knew that their act was wrong or contrary to the law. This is in addition to the mens rea and actus reus requirement.

  • If this knowledge cannot be shown, the child cannot be held criminally liable for the offence.
24
Q

Outline M’Naghten rules (Insanity):

A

The M’Naghten rules are frequently used to establish whether or not the Defendant is insane. It is based on the persons’s ability to think rationally so that if a person is insane they were acting under such a defect of a reason from a disease pf the mind that they did not know:

  • The nature and quality of their actions OR
  • That what they were doing was wrong
25
Q

What is sane and insane automatism?

A

Automatism may be quite different and distinct from insanity, although it may be due to disease of the mind. Hence it is necessary to distinguish the difference between:

  • Sane automatism - the result of somnambulism (sleepwalking), a blow to the head or effects of drugs
  • Insane automatism - The result of mental disease.
26
Q

How NZ courts deal with a defence of automatism arising out of taking alcohol and /or drugs:

A

New Zealand has adopted the principle that self-induced intoxication can lead to a defence of automatism if the evidence is sufficiently strong to support the defence.

In New Zealand, the courts are likely to steer a middle course, allowing a defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disallow the defence where the state of mind is obviously self induce, the person is blameworthy, and the consequences could have been expected.

27
Q

Outline general rules regarding intoxication defence.

A
  • Where intoxication causes the disease of the mind so as to bring S23 CA61 into effect
  • If intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
  • Where the intoxication causes a state of automatism (complete acquittal)
28
Q

What three points must be satisfied before the defence of compulsion can be used?

A
  • The defendant was confronted by an immediate threat of death/GBH by a person present at the time
  • The defendant must have genuinely believed the threat AND
  • The defendant must not be party to any association or conspiracy involved in carrying out the threats.
29
Q

Degree of force permitted for self-defence under what subjective criteria?

A
  • What are the circumstances that the defendant genuinely believes exist? (Whether or not mistaken)
  • Do you accept that the defendant genuinely believes those facts
  • Is the force used reasonable in the circumstances believed to exist?
30
Q

Circumstances where culpable homicide have been supported in criminal law:

A
  • Committing arson
  • Giving a child excessive amounts of alcohol to drink
  • Placing hot cinders and straw on a drunk person to frighten them
  • Supplying heroin to the deceased
  • Throwing concrete from a motorway bridge into an approaching car
  • Conducting an illegal abortion
31
Q

If the Defendant intends to call an expert witness during proceedings, what must they disclose to the prosecution?

A
  • Any brief of evidence to be given or any report provided by that witness OR
  • If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report are to be provided.
  • This information must be disclosed at least 10 days before the date fixed for the Defendant hearing or trial, or within a further time that the court may alow under section 23(1).
32
Q

When does a child become a human under S159(1) & 159(2) (Killing of a child) and therefore able to be murdered under S158(Homicide defined)?

A

159(1) A child becomes a human being with the meaning of this act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.

159(2)The killing of such a child is homicide, if it dies in consequences of injuries received before, during or after birth.

33
Q

To establish proof of death in relation to homicide you must prove three key elements:

A
  • Death occurred
  • Deceased is identified as the person who has been killed
  • The killing is culpable
  • Death can be proved by direct and/or circumstantial evidence
34
Q

Outline the ingrediences for infanticide S178 - 3 years imprisonment

A
  • Where a woamn causes the death of any child of hers under 10 years old in a manner that amounts to culpable homicide and
  • Where at the time of the offence the balance of her mind was disturbed by reason of;

a) her not having fully recovered from the effect of giving birth to that or any other child OR
b) the effect of lactation OR
c) Any disorder consequent upon childbirth or lactation

  • To such an extent that she could not be held fully responsible
  • She is guilty of infanticide and not murder or manslaughter
35
Q

Hearsay statemant is admissible in any proceeding if;

A

The circumstances relating to the statement provide reasonable assurance that the statement is reliable and either:

  • The maker of the statement is unavailable as a witness OR
  • The judge considers that undue expense and delay would be caused if the maker of the statement were required to be a witness
36
Q

What can you do with a child under 10 who has committed a serious sexual offence?

A

Refer to OT as unable to convict a person who has committed a crime under 10 years old.

37
Q

You cannot use the defence of consent to assault in the following cases

A
  • Aiding suicide
  • Criminal actions
  • Injury likely to cause death
  • Bodily harm likely to cause a breach of the peace
  • Indecency offences
  • The placing of someone in a situation where they are at risk of death or bodily harm
38
Q

Can an organisation be convicted of murder or manslaughter?

A

No, only as a party to manslaughter

39
Q

Admissibility of hearsay statements S18(1) EA 06:

A

(a) The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) Either—
(i) The maker of the statement is unavailable as a witness; or
(ii) The Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

40
Q

The Defendants culpability when a person dies following the withdrawal from life support?

A

This arbitrary rule prevents indefinite liability for prosecution for culpable homicide after an assault, and the development of surgery and life support procedures has increased the chances of long delay before death

A defendant will not be relieved of responsibility merely because a life support system is withdrawn in good faith, with the result that any possibility of survival for the statutory year and a day was lost.

41
Q

A day and a year Section 162

A

162 Death must be within a year and a day

(1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
(2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased.
(4) Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.

42
Q

Killing in a sudden fight, what must you consider?

A

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

  • self-defence
  • the requisite mens rea for a murder charge.

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

  • If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an acquittal.
  • If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter.
43
Q

List the difference between counselling or attempting to procure murder section 174 and conspiracy to murder Section 175

A

Counselling or attempting to procure murder requires that the offender is to be committed in New Zealand whereas Conspiracy can be in New Zealand or elsewhere.

Counselling or attempting to procure murder only applies if the murder is not in fact committed whereas conspiracy to murder applies regardless if its committed or not.

44
Q

In general, no one is criminally responsible for the killing of another by any influence of the mind. What are the exception to the rule?

A
  • Wilfully frightening a child under 16

- Wilfully frightening a sick person (mentally or physically)

45
Q

Define the term suicide pact 180(3) CA 61

A

For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

46
Q

Discuss the case of Forrest and Forrest and outline the case law

A

The best evidence possible should be adduced by the prosecution in the form of the victims age.

Two men were charged with having sexual intercourse with a 14-year-old girl who had run away from Child Welfare Custody. At trial, the girl produced her birth certificate and gave evidence herself that she was the person named. The men successfully appealed their convictions on the grounds the crown didn’t adequately prove the victim’s age.

47
Q

How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and/or drugs?

A

In New Zealand, the courts are likely to steer a middle course, allowing the defence of automatism arising out of taking alcohol and drugs, to offences of basic intent only. They are likely to disallow the defence where the state of the mind is obviously self-induced, the person is blameworthy and the consequences could have been expected.

48
Q

List the ingredients of section 48, CA 61

A

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

49
Q

Provide three guidelines in respect of consent regarding assault

A
  1. Everyone has the right to consent to a surgical operation
  2. Everyone has the right to consent to the infliction of force not involving bodily harm
  3. No one has the right to consent to their death or injury likely to cause death
  4. No one has the right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorder persons
  5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another
50
Q

In relation to section 160(2)(d) of the CA 61, give two practical examples of culpable homicide which has been caused by the victim’s actions, prompted by threats on fear of violence

A
  1. Jumps or falls out of a window because they think they are going to be assaulted
  2. Jumps into a river to escape an attack and drowns.
  3. Who has been assaulted and believes their life is in danger, jumps from a train and is killed.
51
Q

Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause GBH

A

Mitigating the circumstances, such as suicide pact, reduce what would otherwise be murder to manslaughter, even though the accused may have intended to kill or cause GBH.

52
Q

What is involuntary manslaughter?

A

Covers those types of unlawfully 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 GBH.

53
Q

What is required for state of mind section 167(b) CA 61

A

To show that the accused state o mind meets the provisions of section 167(b), you must establish that the accused;

  • intended to cause GB injury to the deceased
  • Knew the injury was likely to cause death
  • Was reckless as to whether death would ensue of note.
54
Q

What is the Courts views on entrapment?

A

In New Zealand the courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the accused.

CIB013 - Homicide (7 decks)

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