Short answer Flashcards
Culpable homicide Sec 160(1) and (2)
(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 his death
(e) by willfully frightening a child under the age of 16yrs or a sick person
Define Sec160(2)(b)
Culpable homicide includes any death caused by an omissions, without lawful excuse, to perform or observe any legal duty.
This covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care.
If death results from such omission the defendant may be convicted of manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea
Wilfully frightening
- define as per Adams on Criminal Law
Wilfully frightening is regarded as intending to frighten, or at least be reckless as to this
R v Horry
- no body found
Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt.
The circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
R v Harney
Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk
Voluntary manslaughter
Mitigating circumstances such as a suicide pact reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause GBH
Voluntary vs Involuntary manslaughter
Voluntary manslaughter:
the defendant may have intended to kill or cause GBH
Involuntary manus laughter:
covers those types of unlawful killings in which the death is caused by an unlawful act or gross negligence and there has been no intention to kill or cause GBH
Abandoning a child Sec 154
- punishment
Every one is liable to imprisonment for a term not exceeding 7yrs who unlawfully abandons or exposes any child under the age of 6yrs
Duty of parent or guardian to provide necessaries and protect from injury Sec 152(1)
(1)Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18yrs is under a legal duty -
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury
Criminal liability for under 10yr olds and 10-13yr olds
A child aged under 10yrs has an absolute defence to any charge brought against them. For children aged between 10-13yrs inclusive, it must be shown that the child knew their act was wrong or contrary to law
Insanity Sec 23(2)
(2)No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as render him incapable-
(a) of understanding the nature and quality of the act or omission; or
(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong
McNaghtens Rule
McNaghtens rules is frequently used to establish whether or not a defendant is insane.
It is based on the persons ability to think rationally, so that if a person is insane they are acting under such a defect of reason from a disease of the mind that they did not know:
- the nature and quality of their actions, or
- that what they were doing was wrong
R v Cottle
- automatism
Doing something without knowledge of it and without memory afterwards of having done it.
A temporary eclipse of consciousness that nevertheless leaves the person so affected, able to exercise bodily movements
R v Lipman
-automatism/alcohol
Where automatism is brought about by a voluntary intake of alcohol or drugs the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention
Attempts Sec 72(1) CA61
- define
Every one 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 in the circumstances it was possible to commit the offence or not
Strict liability offence
- define
- example
- defence
A strict liability offence is one that no mens rea need be proved by the prosecution such as the offence of driving with excess breath or blood alcohol, the only way a defendant can escape liability for such as offence is to prove a total absence of fault
Defence of compulsion
- describe
A person acts under ‘compulsion’ if they commit an offence having been compelled to do so by threats of immediate death or GBH to themselves or another person present when the offence is committed.
The threats must be operating on their mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way
Defence of Entrapment
- describe
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
NZ 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 Defendant.
E.g where police have generated the offending
Defence of Self Defence
- how is the ‘degree of force used’ tested?
The degree of force permitted is tested under the following subjective criteria:
(1) what are the CIRCUMSTANCES that the defendant genuinely believes exist (whether or not it is a mistaken belief)?
(2) do you ACCEPT that the defendant genuinely believes those facts?
(3) is the force used REASONABLE in the circumstances believed to exist?
Sec 167 CA61
Murder defined
(3)
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 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
Legal Duties
- define
- examples (3)
The expression ‘legal duty’ refers to those duties imposed by statute or common law including uncodified common law duties such as:
1. Provide the necessaries and protect from injury
2. Provide necessaries as an employer
3. Avoid omissions that will endanger life
Culpable homicide Sec 160(2)
- list 3 circumstances where homicide is 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 his death, or
(e) by wilfully frightening a child under the age of 16yrs or a sick person
Sec174 counseling or attempting to procure murder
vs.
Sec175 Conspiracy to murder
Sec 174- Incites, counsels or attempts to procure any person to murder any other person in NZ, when that murder is not committed
Sec 175- conspires or agrees with any person to murder any other person, whether in NZ or elsewhere and regardless if the murder is committed or not
Suicide Pacts Sec 180(2)
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years, but he shall not be convicted of an offence against section 179 of this act
Procedure when Alibi witnesses are to be interviewed
3
(1) advise the defence counsel of proposed interview and give them reasonable opportunity to be present
(2) if the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police
(3) make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any info that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)
If the Defence intent to call an expert witness during proceedings, they must disclose to the prosecutor..
(3)
(1) any brief of evidence to be given or any report provided by that witness, or
(2) if that is not available, a summary of the evidence to be given and the conclusions of any report to be provided
(3) this information must be disclosed at least 10 working days before the date fixed for the defendants trial
Killing of a Child
Sec 159
(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 it’s mother, whether it has breathed or not,whether is has an independent circulation or not and whether the navel 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
Other common law examples of culpable homicide
- (4)
- committing arson
2. giving a child an excessive amount of alcohol to drink
3. Supplying heroin to the deceased
- conducting an illegal abortion
Sec 160(2)(d) Two examples of person dying from threats or fear of violence
(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
Proof of Death
3
To establish the death, you must prove the-
(1) death occurred
(2) deceased is identified as the person who has been killed
(3) the killing is culpable
Death can be proved by direct and/or circumstantial evidence
Homicide Sec 158
- define
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever
GBH
- define
Grievous bodily harm means harm that is very serious, such as injury to a vital organ
The test for proximity (Semester and Brookbanks)
-(2)
- has the offender done anything more than getting himself into a position from which he could embark on an actual attempt, or
- has the offender actually commenced execution, that is to say, has he taken a step in the actual offence itself
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
Involuntary manslaughter
-define
Covers those 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 cause GBH
Sec 178 Infanticide
Where a woman causes the death of any child of hers under the age of 10yrs 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 her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not murder or manslaughter, and is liable to imprisonment for a term not exceeding 3yrs
General admissibility of hearsay Sec 18(1) (a) + (b)
(1) A hearsay statement is admissible in any proceeding if-
(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
Justified
- define
In relation to any person ‘justified’ means that the person is not guilty of an offence and is not liable civilly
R v Clancy
The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the childs mother…production of the birth certificate, if available, may have added to the evidence but was not essential
Automatism
Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them
Sane vs. Insane automatism
Sane automatism = the result of somnambulism (sleep walking), a blow to the head or the effects of drugs
Insane automatism = the result of a mental disease
Intoxication may be a defence to the commission of an offence when-
(3)
(1) where the intoxication causes a state of automatism (complete acquittal1)
(2) where the intoxication causes a disease of the mind so as to bring s23 (insanity) of the CA 61 into effect
(3) 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
Alibi
- define
An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere
R v Blaue
- explain the case too
Those who use violence must take their victims as they find them
jehovah witness who had been stabbed refused to accept a blood transfusion, dies. Appeal was unsuccessful as the question for decision is what caused her death. The answer is a stab wound. Liability depends on the mens rea not on the victim’s subsequent actions
Self Defence Sec 48
- subjective/objective test
Once the defendant has decided that use of force was required (subjective view of the circumstances as the defendant believed them) s.48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used
R v Myatt
- Sec 160(2)(a) unlawful act
Before a breach of any act, regulation or bylaw would be an unlawful act under s.160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some class of persons of whom he was one
Legal Duties Sec 160(2)(b)
- 4 examples
(1) provide the necessaries and protect from injury
(2) provide necessaries and protect from injury to your charges when you are a parent or guardian
(3) provide necessaries as an employer
(4) avoid omissions that will endanger life
R v Tomars
- Sec 160(2)(d)
Formulates the issues in the following way:
1. was the deceased threatened by, in fear of or deceived by the defendant
- if they were, did such threats, fear or deception cause the deceased to do the act that caused their death
3. was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendants position at the time could reasonably have foreseen the consequence
4. did these forseeable actions of the victim contribute in a significant way to his death
Sec 163
Exceptions to rule that no one can kill someone by influence of the mind
No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16yrs or a sick person, nor for the killing of another by any disorder arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person
Justified
- define
- two examples of ‘justified’ killings
Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability
(1) homicide committed in self defence, or
(2) homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one
Sec 167(a) and (b)
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 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
R v Murphy
- attempted murder hard to prove
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, therefore this requirement makes it one of the most difficult to prove beyond a reasonable doubt
Accessory after the fact to Murder, Sec 176
- ingredients
Every one is liable to imprisonment for a term not exceeding 7yrs who is an AATF to murder Knowing any person to be a party to murder
Receives, comforts or assists that person or
tampers with or actively suppresses any evidence
In order to enable them to escape after arrest or avoid arrest or conviction
Suicide Pact, Sec 180(3)
- define
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
What conditions must be met before a statement from a dangerously ill person may be given in evidence?
A statement taken from a person who is dangerously ill can be presented as evidence to court if they are dead at the time of the hearing and reasonable assurance of the statements reliability can be shown
R v Forrest & Forrest
- discuss case
- case law
In R v Forrest & Forrest two men were charged with having sexual intercourse with a 14yr old girl. At trial the girl produced her birth certificate and gave evidence herself that she was the person named in the certificate. The men successfully appealed their convictions on the grounds that the Crown had not adequately proved the girls age.
‘The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age’
How do NZ Courts deal with a defence of automatism arising of taking alcohol and drugs?
In NZ, 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 induced, the person is blameworthy, and the consequences could have been expected
R v Kamipeli
- intoxication
It does not have to be shown that the defendant was incapable of forming the mens rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty
Self Defence and Defence of another, Sec 48
- ingredients
Every one 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
R v Ranger
- preemptive strike case law
- discuss case
It is possible for selfdefence to be raised as a defence, even if the defendant has used a preemptive strike against the victim, R v Ranger, defendant stabbed her partner in shoulder with sufficient force to kill him as he threatened to kill her and their son and reached for guns he kept under the bed
Three examples of consent in relation to bodily injury
(1) Everyone has a right to consent to a surgical operation
(2) Everyone has a right to consent to the infliction of force not involving bodily injury
(3)No one has a right to consent to their death or injury likely to cause death
Discuss culpable homicide that does not amount to murder
Except in cases of infanticide, culpable homicide that does amount to murder is treated as manslaughter.
The key difference between manslaughter and murder depends on the mental element that must be established to support the charge.
Common law draws a further distinction between voluntary and involuntary manslaughter.
