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Homicide L & D > Short Answer > Flashcards

Short Answer Flashcards

1
Q

Define Homicide S158 CA 61

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 organisation can be convicted as a party to the offence

Murder - an organisation cannot be convicted as either a principal offender or a party of 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 organisation cannot be convicted as a principal offender.

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3
Q

Define S159 CA 61 - When a child becomes a human being?

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 it has an independant circulation or not, 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)

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 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

6 common law examples of culpable homicide?

A
  • Committing arson
  • giving a child excessive amounts of alcohol to drink
  • placing hot cinder and straw on a drunk person to frighten them
  • supplying heroine to the deceased
  • throwing a large piece of concrete from a motorway overbridge, into the path of an approaching car
  • conducting an illegal abortion
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6
Q

define a strict liability offence and provide an example

A

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

  1. driving with excess breath alcohol
  2. speeding offences
  3. supplying alcohol to minors
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7
Q

Define legal duty S160(2)(b) and list 3 duties imposed by statute

A

the expression legal duty refers to those duties imposed by statute or common law including uncodified common law duties:

  • provide the necessaries and protect from injury S151
  • provide the neccessaries and protect from injury as a parent or guardian S152
  • provide the necessaries as an employer S153
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8
Q

What was held in R v Tomars

A

Formulates the issue in the followng way:

    1. was the deceased threatened by in fear or or deceived by the accused
      1. if they were, did such threats fear or deception cause the deceased to do an act which caused their death
      2. was the act a natural consequence of the actions of the defendant, in a sense that reasonable and responsible people, in the accused position could have reasonably forseen the consequences
      3. 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 some 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 is in danger, jumps from a train and is killed
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10
Q

How is wilfully frightening define 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 establush the death of a person what must you prove?

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 the ruling in r v horry

A

Death should be provable by such circumstance as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cognent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be account 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 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

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14
Q

167(b) Must prove

A
  • Intended to cause bodily harm 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

What was held in R v Harney

A

Reckless involves the foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk

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16
Q

Define S66(2) CA 61

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 byany 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 victims breath must be done willfully

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18
Q

Define attempts S72(1) CA61

A

Everyone 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

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19
Q

Why is attempted murder hard to prove. Explain with R v Murphy

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

What was held in 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 defendants conduct may be considered in its entirety… considering how much remains to be done.. is always relevant though not determinative

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21
Q

determine the point at which an act in preparation becomes an attempt

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 and 175

A
  • S174 applies where murder is in fact not committed
  • S175 applies whether murder is committed or not
  • S175 can include the death of another outside of NZ if it would amount to murder in NZ
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23
Q

What was held in 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 accessory after the fact to murder when the actus reus of the alledged criminal conduct is wholly completed before the offence of homicide is complete

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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 GBH

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25
Q

Define involuntary manslaughter

A

Covers those types of unlawful killings in which death is caused by an unlawful act or gross negligence. IN such cases there has been no intention to kill or cause GBH

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26
Q

Define infanticide S178 CA 61

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 upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of manslaughter and not of murder or manslaughter and is liable to imprisonment for a term not exceeding 3 years

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27
Q

Define S152 - duties of a parent or guardian

A

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:

  • to provide that child with the necessaries
  • to take reasonable steps to protect that child from injury
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28
Q

What was held in R v Blaue

A

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

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29
Q

What does liability depend on and provide an example

A

Liability depends on the mens rea not on the victims subsequent actions.

eg. a victim who is a jehovahs witness is stabbed, refuses to accept a blood tranfusion due to religious beliefs, goes on to die

30
Q

Define S180(1) CA 61

A

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

31
Q

Define S180(2) CA 61

A

Where 2 or more persons enter into a suicide, 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.

32
Q

Define S180(3) CA 61

A

For the purposes of this section, the term suicide pact means a common agreement between two 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 being 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.

33
Q

Define S18(1) EA06 (hearsay statement)

A

A hearsay statement is admissable if:

  • the circumstances relating to the statement provide reasonable assurance the statement is reliable and either
  • the make of the statement is unavailable as a witness or
  • the judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness
34
Q

Define justified and provide 2 examples where homicide may be justified

A

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

eg. -Homicide committed in self defence
- Homicide commited to prevent suicide or the commission of an offence which would be likely to cause immediate and serious injury to a person or the property of any person

35
Q

Outline culpability for children under 10 and 10-13

A

S21(1)
No person shall be convicted of an offence by reason of any acts done or omitted by him wen under the age of 10 years

S22(1)
No person shall be convicted of any offence by reason of any acts done or omitted by him when of the age of 10 but under the age of 14 years unless he knew either that the act or omission was wrong or that it was contrary to law

36
Q

What was held in R v Clancy

A

The best evidence as to the date and place of a 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 S23(2)(a)

A

No person shall be convicted of an offence by reason of any act done or omitted by when 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
b. of knowing that the act or omission was morally wrong, havng regard to the commonly accepted standards of right and wrong

38
Q

What are M’Naughtens rules

A

From a disease of mind that they did not know:

  • the nature and quality of their actions or
  • that what they were doing was wrong
39
Q

What was held in R v Codere

A

The nature and quality of the act means the physical character of the act. The phrase does not involve ay consideration of the accuseds 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 bread would not know the nature and quality of his act

40
Q

What was held in R v Cottle (automatism)

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 blow to the head or the effects of drugs
Insane automatism - the result of a mental disease

Both types 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
  • when the intoxication causes a disease of the mind so as to bring S23 (insanity) 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)
43
Q

S25 outlines ignorance of law - what does this state and who does it apply to

A

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

44
Q

S24 CA 61 discusses provisions that must be met for a defence of compulsion. What are these provision

A

Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or GBH 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 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 NZ the courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence

46
Q

Define S48 CA 61

A

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

47
Q

Subjective criteria for degree of force used

A
  • What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)
  • Do you accept that the defendant genuinely belives those facts?
  • Is the force used reasonable in the circumstances believed to exist?
48
Q

Define alibi

A

An alibi in the plea in a criminal charge of having been elsewhere at the material time, the fact of being elsewhere.

49
Q

S20 requires the court to give the defendant written notice of the required 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

50
Q

If the defendant intends to call an expert witness, what must the disclose 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 conclusion 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
51
Q

How do the courts in NZ deal with a defence of automatism arising out of taking alcohol and drugs

A

In NZ, the courts are likely to steer a middle course, allowing a defencne 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 blame worthy and the consequences could have been expected

52
Q

Dicuss the case law around the use of pre emptive strikes used in self defence

A

R v Ranger
If this defendant did really believe that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, mght 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 force in all the circumstances

53
Q

provide 3 guidelines in respect of consent

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 consent to their death or injury likely to cause death
54
Q

Define unlawful act

A

Means a breach of any act, regulation rule or bylaw

55
Q

What are the ingredients to accessory after the fact to murder

A

Sec 176 Accessory after the fact to murder.
Everyone is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
Sec 71(1)
- Knowing any person to be a party to an offence (murder)
- Receives, comforts or assists that person, or
- Tampers with or actively suppresses any evidence
- In order to enable him to escape after arrest, or avoid arrest or conviction.

56
Q

Discuss Forest and Forest

A

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

57
Q

What was held in R v McKeown

A

a. Whether the defendant knew the acts were likely to cause death and
b. whether the original intent of indecent assault amounted to an unlawful object

58
Q

What was held in DPP v Newbury and Jones

A

a. the Defendant must intentionally do an act
b. the act must be unlawful
c. the act must be dangerous
d. the act must cause death

59
Q

What was held in 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

60
Q

What was held in Police v Lavelle

A

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

61
Q

List 3 instances where culpable homicide is murder S167 CA61

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, ay 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 case death and thereby kills any person though he may have desired that his object should be effected without hurting anyone

62
Q

Name two offences where a consent is not a defence

A
  • Indecency offences where consent is excluded

- Consent to death (s63)

63
Q

what was held in R v Myatt

A

before a breach of any act, regulation or bylaw would be an unlawful act under s160 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

64
Q

In general no one is criminally responsible for the killing of another by any influence of the mind alone. What are the exceptions to this rule? S163 CA61

A

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

65
Q

Give an example where murder might be reduced to manslaughter even though the defendant may have intended to kill or cause GBH

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 GBH

66
Q

What must the defendant include in a notice of alibi?

A

The name and address of the witness, or if the name and address is not known to the defnedant when the notice is given, any matter known by the defendant that may be of material assisstance in finding that witness

67
Q

Explain what is meant by S160(2)(b) CA61, omission to perform a legal duty

A

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 any such omission the defendant may be convicted of manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea

68
Q

Define S153 CA61, abandoning a child under 6

A

Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years

69
Q

What was held in R v Cottle (degree of proof)

A

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

70
Q

What was held in R v Lipman

A

Where automatism is brought about by the voluntary intake of alcohol and drugs, the court may be reluictant to accept that the actions were involuntary or that the offender lacked intention

71
Q

Define automatism

A

Automatism can best be descrbed as a state of total blackout, during which a person is not conscious of their actions and not in control of them

Homicide L & D (1 decks)

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