Short Answers Flashcards
What is the penalty for attempted murder?
173 Attempt to murder
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
Outline s181 of the Crimes Act 1961 (concealing a dead body of a child)
181 Concealing dead body of child
Every one 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, or during, or after birth.
In which court does a youth facing a charge of murder or manslaughter appear?
where a Young persons over 14 years of age is alleged to have committed Murder or Manslaughter they are usually dealt with under the youth justice provisions of the Oranga Tamariki Act 1989. Charges are filed in the District Court, the first appearance takes place before the Youth Court and the case will automatically be transferred to the High Court for trial and sentencing.
A Question of Law relating to whether the condition is a disease of the mind is answered by whom?
The judge
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 causes and symptoms of the condition diagnosed, but such a classification by medical witnesses is not final, and whether the particular condition is a disease of the mind is a question of law for the Judge.
Disease of the mind is not a medical question but a legal one.
What that accused’s state of mind was at the time of the offence is a question decided by whom?
The jury
What is the burden of proof for insanity?
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.
S153 of the Crimes Act ‘61, what is the relevant age of the person who is employed?
Under the age of 16 years
Where a charge of infanticide is laid, who decides on the Mothers state of mind?
If a woman is charged with murder or manslaughter, but the jury believes her state of mind is due to the effects of childbirth, the jury is required to return a special verdict of acquittal on account of insanity caused by childbirth. However, the prosecution may file charging documents for both infanticide and murder of an infant, and it is up to the jury to decide on the mother’s state of mind.
In charges of infanticide, it is for the jury to decide on the mother’s state of mind.
Pursuant to s22(3)(a) of the Criminal Disclosure Act ‘08, the notice under subsection (1) must include:
(3) Without limiting subsection (1),—
(a) the notice under subsection (1) must include the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness;
Before a conviction can be obtained for manslaughter, where one of the sections referred to is s150A(1) of the Crimes Act ‘61, what must the prosecution prove?
the prosecution must prove a “very high degree” of negligence or “gross negligence”.
Proximity is a question of law decided by whom?
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.
Written notice of an alibi is to be given by the defendant:
must be given within 10 working days after the defendant is given notice under section 20
As a general guideline, most offences within the CA ‘61, will require an intent (Mens rea) of some kind. Outline a defence that would therefore be generally available:
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.
Provide an overview of the culpability of persons involved in suicide pacts
Because the law does not recognise a person’s right to consent to death, people who help another to commit suicide or who are part of a suicide pact but survive are responsible for the other person’s death. In such cases the surviving person is charged with manslaughter.
Outline s25 of the CA ‘61, ignorance of the law
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
Outline “M’Naghtens’s rules”
The M’Naghten’s rules are frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally, so that if a person is insane they were 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.
List four statutory legal duties in respect of the CA’61
- provide the necessaries and protect from injury (s151)
- provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)
- provide necessaries as an employer (s153)
- use reasonable knowledge and skill when performing dangerous acts, such as surgery (s155)
- take precautions when in charge of dangerous things, such as machinery (s156)
- avoid omissions that will endanger life (s157).
List the difference between counselling or attempting to procure murder (s174) and conspiracy to murder (s175)
174 Counselling or attempting to procure murder
requires the defendant to incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed.
175 Conspiracy to murder
Requires the defendant to conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.
Section 175 may apply regardless of whether murder is committed or not.
Both punishable 10 years imprisonment
Section 159(1) & (2) of the CA’61 defines when a child becomes a human being and is therefore able to be murdered under s158. Detail the provisions of s159(1) & (2)
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 child is homicide if it dies in consequence of injuries received before, during, or after birth.
Define homicide, s158 CA’61
158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
State the ingredients of infanticide (s178 CA’61)
178 Infanticide
(1) 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 infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.
In general, no one is criminally responsible for the killing of another by any influence of the mind. What are the exceptions to this rule?
wilfully frightening a child under the age of 16 years or a sick person
What is meant by the term ‘justified? Provide two examples.
When an act result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.
Examples of such acts include:
• homicide committed in self-defence (s48)
• 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 (s41).
What are the ingredients to accessory after the fact to murder?
176 Accessory after the fact to murder
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
Knowing any person to have been a party to the 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
To avoid arrest or conviction
Define the term ‘suicide pact’ s180 CA61
180 Suicide pact
(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(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.
(3) 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.
How do NZ Courts deal with a defence of Automatism arising out of taking alcohol and / or drugs?
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-induced, the person is blameworthy, and the consequences could have been expected.
List the ingredients of s48 of the CA61 (self defence or defence of another)
48 Self-defence and defence of another
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.
Provide 3 guidelines in respect of consent regarding assault
Guidelines
- Everyone has a right to consent to a surgical operation.
- Everyone has a right to consent to the infliction of force not involving bodily harm.
- No one has a right to consent to their death or injury likely to cause death.
- No one has a 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 disorderly persons.
- 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.
In common law, allegation of culpable homicide have been supported where the offenders have caused death by particular circumstances. Name any four of these circumstances.
- committing arson
- giving a child an excessive amount of alcohol to drink
- placing hot cinders and straw on a drunk person to frighten them
- supplying heroin to a person who subsequently dies from an overdose
- throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
- conducting an illegal abortion where the mother dies.
In relation to s160(2)(d) of the CA61, give 2 practical examples of culpable homicide which has been caused by the victims actions, prompted by threats or fear of violence
- jumps or falls out of a window and dies 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.
To establish proof of death, in relation to homicide, you must prove 3 key elements, what are they?
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable
What is the definition of the period ‘a year and a day’ as outlined in s162(2) CA61?
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.
S168(1)(a) CA61 refers to the term ‘grievous bodily injury’, what does this mean and give an example of such an injury
“grievous bodily injury” means harm that is very serious, such as injury to a vital organ.
In the test for proximity, Simester and Brookbanks (Principles of Law 224) suggest the following questions should be asked in determining the point at which an act of mere preparation of committing a crime may become an attempt. What are those 2 questions?
- 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?
Give an example when murder might be reduced to manslaughter even though the accused intended to kill or cause grievous bodily harm.
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 grievous bodily harm.
