Qs

Question 1

158 - Homicide defined

Answer 1

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

Question 2

159 - Killing of a child

Answer 2

1) I 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 naval string is severed or not.

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

Question 3

160 - Culpable homicide

Answer 3

1) Homicide may be either culpable or not culpable

2) Homicide is culpable when it consists of the killing of any person

a) by any unlawful act

B) by an omission without lawful excuse to perform or observe any legal duty

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 his death or

E) by wilfully frightening a child under the age of 16 or a sick person

3) Except as provided in section 178 of this act, culpable homicide is either murder or manslaughter

4) homicide that is not culpable is not an offence

Question 4

Unlawful act

Answer 4

Means a breach of any act, regulation, rule, or bylaw

Question 5

Examples of legal duties

Answer 5

– Provide the necessaries and protect from injury

– provide necessaries and protect from injury to your charges when you are a parent or guardian

– provide necessaries as an employer

– use reasonable knowledge and skills when performing dangerous acts such as surgery

• Take precautions When in charge of dangerous things, such as machinery
• Avoid omissions that will endanger life

Question 6

Threats, fear, or deception can result in homicide examples

Answer 6

– Jumps or falls out of a window and dies because they think they are going to be assaulted

– jumps into a river to escape and attack and drowns

– who has been assaulted and believes that life is in danger, jumps from a train and is killed

Question 7

163 - Killing by influence on the mind

Answer 7

• No one is criminally responsible for the killing of another by any influence of the mind alone,
• Except by wilfully frightening a child under the age of 16 or a sick person,
• nor for the killing of another by any disorder or disease arising from such influence,
• except by wilfully frightening any such child as aforesaid or a sick person

Question 8

R V Horry

Answer 8

• Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt
  – that the circumstantial evidence should be so coherent or compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for

Question 9

168 - Further definition of murder

Answer 9

Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensure, or nose or does not know that death is likely to ensue

• If he means to cause GBH for the purpose of facilitating the commission of an offence and subsection two of the section a facilitating the flight or avoid the detention of the offender upon the commission or attempted commission there of, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury

– if he administers any stupefying or overpowering thing for any of the purposes aforesaid and death and see use from the effects therefore

– If he by any means wilfully stops the breath of any other person for any of the purposes of or said and death and shoes from such stopping of breath

Question 10

Cameron V R

Answer 10

Recklessness is established if

– the defendant recognised that there was a real possibility that

– his or her actions would bring about a prescribed result

– the prescribed circumstances existed and

– having regard to that risk those actions were unreasonable

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 under either section 167(b) or (d) or must be more than negligible or remote.

The accused must recognised a real and substantial risk that death would be caused

Question 12

Section 72 – attempting to commit an offence

Answer 12

1) Everyone who having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

– the question whether an act done or omitted with intent to commit an offence is or is not only perpetration of the commission of that offence and two remote to constitute an attempt to commit it, is a question of law

– an act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act on the quote that clearly showing an intent to commit that offence

Question 13

R V Murphy

Answer 13

When proving in attempt to commit an offence and must be shown that the accused intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the crown to Establishment an actual intent to kill

Question 14

Acts must be sufficiently approximate to the full offence

Answer 14

To prove an attempt the defendant must have done or omitted to do some acts that is or a sufficiently proximately, close, to the full offence.

Affectively, the defendant must have started to commit the full offence and have gone beyond the phase of me a preparation – this is the all but rule

Question 15

Several acts together may constitute an attempt

Answer 15

Independent act, which is looked at in isolation, might simply be constructed as preparatory, can take on a different context when looked at collectively and therefore amount to a criminal attempt

Question 16

R V Harpur

Answer 16

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

The defendants conduct may be considered in its entirety. Considering how much remains to be done as always relevant though not detrimental

Question 17

Proximity

Answer 17

The determination of proximity is an inconclusive one and will come down to the circumstances as they exist for each individual offence that is being investigated

• Do the facts show mere preparation

– are the defendants acts or omissions immediately or sufficiently approximate to the intended offence

Question 18

Proximity is a question of law

Answer 18

Proximity is a question of law it is a question that is decided by the judge based on the assumption that the facts of the case are proved

Question 19

173 - Attempted murder

Answer 19

Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

Question 20

Voluntary manslaughter

Answer 20

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

Question 21

Involuntary manslaughter

Answer 21

Covers those types of unlawful killings 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 cause GBH

Manslaughter then includes culpable homicide that
– does not come with in section 167 or 168
– comes with in section 167 and 168 but is reduced to manslaughter because the killing was a part of a suicide packed as defined in section 180(3) of the crimes act 1961

Question 22

Consider these issues if you are to decide the way in which are killing should be viewed

Answer 22

– If the homicide can be justified as having arisen out of self defence (48) the proper verdict is in 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

Question 23

Protected from criminal responsibility

Answer 23

Means the person is not guilty of an offence but civil liability may still arise

Question 24

R V forrest and forrest

Answer 24

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age

Question 25

General rule for all child offenders

Answer 25

Will be referred to the Care and Protection Co-ordinator until they reach the age of 14 years

Question 26

Children under 10 years

Answer 26

When offences are being committed by children aged under 10 and some action is desired or necessary, consider having a child and family dealt with as a care and protection matter.

Where this action is taken, the circumstances are reported to OT for the attention of the care and protection coordinator

Question 27

Children aged 10 to 13 years old charged with murder / manslaughter

Answer 27

They are usually don’t was under the youth justice provisions of the OT act 1989.

Charges are filed in the district court and first appearance takes place before the youth court and the case then automatically transfers to the high court for trial and sentencing

Question 28

R V Cottle

Answer 28

As the degree of proof, it is sufficient for the play is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt

The defendant is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities

Question 29

A question of law

Answer 29

In practice, medical witnesses are permitted to say whether they regard a disorder as a disease of the mind, as well as testifying as to the cause of the symptoms of the conditions diagnosed, but such a classification by medical witnesses is not final,

And whether a particular condition is a disease of the mind is a question of raw for the judge

Question 30

Caused by consumption of alcohol or drugs

Answer 30

We are automatism has brought about by a voluntary intake of drugs and alcohol the court may be reluctant to accept that the actions were voluntary or that the offender lacked intention

Decisions of the court indicate that convincing evidence is necessary to support it, and only and very rare cases will it be enough to say that the person that they did not know or could not remember what happened, or that they had a blackout, such statements have been called one of the first refuges of a guilty conscience and a popular excuse

Question 31

Sane automatism

Answer 31

The result of sleepwalking a blow to the head or the effects of drugs

Question 32

Insane automatism

Answer 32

The result of a mental disease

Question 33

Successful plea of automatism negates intent and responsibility

Answer 33

The position with sign automatism is clearer. If there is no question of disease of the mind, a successful play of automatism negates intent as well as responsibility for the actus reus,

And the result is an unqualified acquittal. If the defendant produces sufficient evidence that the intent was lacking because they were acting in an autonomous, then they must be acquitted is the crown will have failed to prove existence of mental element of the offence

Question 34

Criminal intent – no intent required

Answer 34

Driving with excess breath alcohol content. Therefore a defence to succeed on a charge a person must prove a total absence of fault. In other words a person drove without conscious appreciation of the fact of driving or of the fact of intoxication

Question 35

Criminal intent – intent required

Answer 35

Any offence that has intent is an element of the offence. An example is assault which requires intent to apply force to another person

Question 36

Application in New Zealand courts

Answer 36

There is no need to work out which offence has a specific, is against a basic, intent in the English case required. New Zealand has adopted the principle of 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 two offences of basic intent only.

They are likely to disallowed their defence where the state of mind is obviously self in juiced the person is blameworthy, and the consequences could have been expected

Question 37

Intoxication available as a defence

Answer 37

Intoxication can be a defence in New Zealand to any crime that requires intent. Any offence that Does not require an intent is called a strict liability offence and the only way a defendant can escape liability for such offences to prove a total absence of fault

In case of homicide another crimes, evidence that a person formed an intent to commit a crime and then took Drinkle drugs as part of the method of committing the crime (gaining Dutch courage) will disqualify this defence of drunkenness automatism

Question 38

Ignorance of law

Answer 38

This ruling applies whether the offender is from the country or from overseas

Question 39

Ignorance of law - the fact the offender

Answer 39

Is ignorant of the law is not an excuse for any offence committed by him.

Question 40

Immediacy and presence required

Answer 40

The threat of death or grievous bodily harm must be immediate and from a person present at the time.

Question 41

R V Joyce

Answer 41

The court of appeal decided that the compulsion must be made by a person who is present when the offender is committed

Question 42

Entrapment

Answer 42

Occurs when an agent of an enforcement body deliberately causes a person to commit and offence so the person can be prosecuted.

Up to the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant