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Homicide Law > Short Answer > Flashcards

Short Answer Flashcards

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1
Q

Define Homicide S158 CA61

A

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

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2
Q

Can an organization be convicted of murder or manslaughter? Explain with case law

A

Manslaughter; an organization can be convicted as a party to the offence.

Murder; an organization cannot convicted as either a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence.

Murray Wright LTD
Because the killing must be done by a human being, an organization cannot be convicted as a principal offender.

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3
Q

Define when a child becomes a human being under S159 CA61

A

(1) A child becomes a human being within the meaning of this act, when it is completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether is has an independent circulation or not and whether the naval string is severed or not.
(2) The killing of a child is homicide if it dies in consequence of injuries received before, during or after birth.

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4
Q

Define Culpable Homicide S160(1) and (2) CA61

A

(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
(b) by an omission without lawful excuse to perform or observe any legal duty
(c) by both combined
(d) by causing that person by threats or fear of violence or by deception to do an act which causes his death
(e) by wilfully frightening a child under the age of 16 years or a sick person

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5
Q

Give 5 examples of Common Law culpable homicide

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 a large piece of concrete from a motorway over bridge into the path of an approaching car
  • Conducting an illegal abortion
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6
Q

What is a strict liability offence and provide 2 examples

A

An offence that requires no intent, only way to escape liability is to prove a total absense of fault.

  • Driving with excess breath alcohol
  • Speeding offences
  • Supplying alcohol to minors
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7
Q

Define Legal Duty S160(2)(b)

A

The expression legal duty refers to those duties imposed by statue or common law including uncodified common law duties:

  • Provide the necessaries and protect from injury S151
  • Provide the necessaries and protect from injury as a parent or guardian S152
  • Provide the necessaries as an employer
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8
Q

What was held in R v TOMARS

A

Formulates the issues in the following way:

  1. Was the deceased threatened by, in fear of or deceived by the Defendant?
  2. If they were, did such threats, fear or deception cause the deceased to do an act that caused their death?
  3. Was the act a natural consequence of the actions of the defendant, in a sense that reasonable and responsible people in the Defendant’s position could reasonably have forseen the consequences?
  4. Did these forseeable actions of the victim contribute in a significant way to his death?
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9
Q

Threats fear or deception can result in culpable homicide. What are three examples of this?

A
  • Jumps or falls out of a window because they think they are going to be assaulted
  • Jumps into a river to escape an attack and drowns
  • Who has been assaulted and believes their life in is danger, jumps from a train and is killed
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10
Q

How is wilfully frightening defined by Adams on Criminal Law?

A

Willfully frightening is regarded as intending to frighten or at least be reckless as to this. - Adams on Criminal Law

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11
Q

To establish the death of a person what must be proved

A
  • death occured
  • the deceased is identified as the person who has been killed
  • the killing is culpable
    Death can be proved by direct and/or circumstantial evidence
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12
Q

What was held in R v Horry

A

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

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13
Q

What does s162(1) and (2) state around when death must have occured

A

(1) no one is criminally responsible for the killing of another unless the death took place within 1 year and 1 day after the cause of death
(2) the period of 1 year and 1 day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place

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14
Q

S167(b) must prove:

A
  • 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
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15
Q

R v Harney

A

Recklessness is the foresight of dangerous consequences that may well happen, together with an intention to continue the course of conduct regardless of that risk

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16
Q

S66(2) Crimes Act 1961

A

Where 2 or more persons form a common intention to prosecute any unlawful purpose and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose

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17
Q

What does grievous bodily injury mean and give an example

A

Grievous bodily injury means harm that is very serious, such as injury to a vital organ. To come within subsection (1)(c) the stopping of the victim’s breath must be done willfully

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18
Q

Define S71(1) ca61

A

Everyone who having an intent to commit an offence, does or omit 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.

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19
Q

R v Murphy in relation to when intent must be established

A

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.

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20
Q

R v Harpur

A

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 viewed in its entirety. Considering how much remains to be done.. is always relevant though not determinative

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21
Q

Determining the point in which an act of mere preparation may become an offence:

A
  • Has the offender done anything more than getting 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?
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22
Q

What are 3 differences between S174 - Counseling or attempting to procure murder and S175 - Conspiracy to murder?

A

S174 applies where murder is in fact not committed
S175 may apply regardless of whether murder is committed or not
S175 can also include the death of another outside of NZ (if it would amount to murder in NZ)

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23
Q

R v Mane

A

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 assessory after the fact to murder when the actus reus of the alleged criminal conduct is wholly completed before the offence of homicide is completed

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24
Q

Define voluntary manslaughter

A

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 grievous bodily harm

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25
Q

Define involuntary manslaughter

A

Covers those types of killings in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm

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26
Q

Outline the provisions of S152 - duties of a parent or guardian

A

(1) Everyone 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 18 years, is under a legal duty -
(a) to provide that child with necessaries and-
(b) to take reasonable steps to protect that child from injury

27
Q

R v Blaue

A

Those who use violence must take their victims as the find them

28
Q

What does liability depend on and provide an example

A

Liability depends on the mens rea not on the victims subsequent actions. For example a victim who is a jehovah’s witness who has been stabbed but refuses a to accept a blood transfusion due to religious beliefs and goes on to die

29
Q

What is a person liable for under S180(1) involving a suicide pact

A

Everyone who, in pursuance of a suicide pact, kills any other person is guilty of manslaughter and not murder and is liable accordingly

30
Q

Define suicide pact under S180(2)

A

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 S179 of this act

31
Q

Define suicide pact Under S180(3)

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 act unless it is done when he has the settled intention of dying in pursuance of the pact

32
Q

Under S18(1) Evidence Act 06 define the general admissability of a hearsay statement

A

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

33
Q

Define the following terms:

A

justified: In relation to any persons, justified means that the person is not guilty of an offence and is not liable civilly

34
Q

Define defences for a child under S21(1)

A

No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years

35
Q

Define defences for a child under S22(1)

A

No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14, unless he knew either that the act or omission was wrong or that it was contrary to law

36
Q

R v Clancy

A

The best evidence as to the date and places of the childs 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

37
Q

Define 23(2)(a)&(b) in relation to insanity

A

No person shall be convicted of an offence by reason of any act done or omitted by him while when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable-

(a) of understanding the nature and quality of the act or omission; or
(b) of knowing the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong

38
Q

What are the M’Naghten’s Rules?

A

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
39
Q

What does R v Codere state in relation to the nature and quality of the act

A

The nature and quality of the act means the physical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the act. Thus a person who is so deluded that he cuts a womans throat believing that he is cutting a loaf of broad would not know the nature and quality of his acts

40
Q

How is automatism define under R v Cottle

A

Doing something without knowledge 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

41
Q

What are the types of automatism?

A

Sane automatism - The result of sleepwalking, a blod to the head or the effects of drugs
Insane automatism - The result of a mental disease
Both forms of automatism involve action without conscious volition

42
Q

The general rule has been that intoxication may be a defence to the commission of an offence in what circumstances

A
  • the intoxication causes a disease of mind so as to bring S23 (insanity) Crimes Act 1961 into effect
  • If intent is required as an essential element of the offence and the drunkenness is suck that the defence can plead a lack of intent to commit the offence
  • where the intoxication causes a statement of automatism
43
Q

Section 25 outlines ignorance of the law. What does this state and who does it apply to?

A

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him. This ruling applies whether the offender is from this country or from overseas

44
Q

Define compulsion S24 CA61

A

Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion

45
Q

Define S48 CA61

A

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

46
Q

In self defence, the degree of force permitted is tested initially under what subjective criteria?

A
  • what are the circumstances the defendant genuinely believes exist? (whether or not it is a mistaken belief)
  • Do you accept that the defendant genuinely believes those facts?
  • Is the force used reasonable in the circumstances believed to exist?
47
Q

What is the definition of an alibi?

A

An alibi is the plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere - Chambers 20th Century dictionary

48
Q

Section 20 requires the court or registrar to give the defendant written notice of the requirements of S22 and 23 when?

A
  • if the defendant pleads not guilty

- if the defendant is a child or young person, when they make their first appearance in the youth court

49
Q

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

A
  • any brief of evidence to be given or any report provided by that witness
  • If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided
  • This information must be disclosed at least 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow
50
Q

how do the courts in NZ deal with a defence of automatism arising our of taking alcohol or drugs?

A

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

51
Q

Discuss the case law around pre-emptive strike used during the course of self defence?

A

R v Ranger
If this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable in all circumstances

52
Q

Provide 3 guidelines in respect of consent

A
  • Everyone has the right to consent to a surgical operation
  • Everyone has the right to consent to the infliction of force not involving bodily harm
  • No one has the right to consent to their death or injury likely to cause death
53
Q

How is the term unlawful act defined

A

Unlawful act - means a breach of any act, regulation, rule or bylaw

54
Q

What are the ingredients to S176 Accessory after the fact to murder?

A

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

55
Q

R v McKeown

A

Whether the defendant knew the acts were likely to cause death,
Whether the original intent of indecent assault amounted to an unlawful object

56
Q

DPP v Newbury and Jones - unawful act for attempted murder

A
  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
57
Q

R v Joyce

A

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

58
Q

List 3 instances where culpable homicide is murder under S167(a-d)

A

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
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

59
Q

Define infanticide S178(1)

A

Where a woman causes the death of any child of hers under the age of 10 years 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, or by reason of any disorder consequent unto childbirth or lactation to such an extent that she should not be held fully responsible, she is guilty of infanticide and not of murder or manslaughter and is liable to imprisonment for a term not exceeding 3 years.

60
Q

Why is attempted murder so difficult to prove?

A

The requirement for intent in S72(1) suggests that only an intention to coomit the offence will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence. Therefore, this requirement on the crown means that attempted murder is one of the most difficult offences in the crimes act to prove beyond reasonable doubt

61
Q

Police v Lavelle

A

It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend as long as the officers did not initiate the persons interest or willingness to so offend

62
Q

Define entrapment

A

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence so that person can be prosecuted. It is not a substantive defence in the sense of providing a ground upon which the defendant is entitled to an acquittal. Of itself, entrapment does not necessarily give rise to an abuse of process.. in New Zealand the courts have rejcted entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence

63
Q

R v Forest and Forest

A

The best evidence possible in the circumstances should be adduced by the prosecution as to the victims age

64
Q

Section 181 CA61

A

Everyone is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before during or after birth

Homicide Law (1 decks)

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