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Flashcards in Homicide Law and Defences Deck (97)
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1

Murray Wright Ltd

Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender

2

R v Myatt

[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.

3

R v Tomars

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 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 defendant’s position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?

4

R v Horry

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 cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

5

`R v Harney

“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”

In R v Harney the defendant was convicted of murder after stabbing the victim in the stomach during an altercation. He argued unsuccessfully that he had been aiming for the victim’s leg knowing he could have seriously injured the man, but denied wanting to kill him.

6

R v Piri

Recklessness [here] involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognise a “real or substantial risk” that death would be caused:

7

R v Desmond

Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death.

Killing in pursuit of an unlawful object: s167(d)
The classic example of a case coming under this provision is one in which death was caused by blowing up a prison wall to liberate prisoners.

8

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:

9

R v Harpur

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

In the matter of R v Harpur, the defendant had carried out a number of acts which, taken together, constituted an attempt to commit sexual violation. The defendant had moved beyond the point of preparation and was lying in wait for his victim at which time he was arrested. The Court determined that the defendant’s conduct was not too remote to constitute an attempt; it was proximately connected with the intended offence:

10

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.

11

R v Blaue

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

The victim [a Jehovah’s witness] had been stabbed but refused to accept a blood transfusion. An appeal against a conviction of manslaughter, on the ground that her refusal to have a blood transfusion was unreasonable and broke the chain of causation between the stabbing and her death, was dismissed.

12

Culpable homicide

Section + defenition

160 Culpable homicide
(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; or
(e) By wilfully frightening a child under the age of 16 years 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.

13

Distinction between murder and manslaughter

whether the offender intended to kill the deceased or to harm them in a way they knew might result in death.

14

To establish death, you must prove?

− death occurred
− deceased is identified as the person who has been killed
− the killing is culpable

15

Time limit for death to be seen as caused by another

The death needs to occur within a year and a day from the time the last unlawful act or omission occurred.

16

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter?

No. Because the killing must be done by a human being, an organisation cannot be convicted as the principal offender. Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal offender or a party to the offence because it is not possible for an organisation to serve the offence’s mandatory life sentence.

17

What is the legal view of consent to death?

The law does not recognise the right of a person to consent to their being killed (s63 of the Crimes Act 1961). As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.

18

Is a body required to prove the death of a person? Explain your answer with reference to case law R v Horry.

No a body is not required to prove death of a person has occurred. 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 cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. R v Horry

19

Would you be charged with any offence if you fatally injured another player during a rugby match? If so, what might the charges be?

Normally you would not be charged with the killing of another player if they died from injuries you caused while playing football. However, you would be guilty of manslaughter if your actions were considered likely to cause serious injury, as you should have been aware of this at the time and refrained from the action.

20

R v Forrest and Forrest

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim's] age.”

In R v Forrest & Forrest two men were charged with having sexual intercourse with a 14-year-old girl who had run away from Child Welfare custody. 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 girl’s age.

21

R v Cottle

Burden of proof - insanity

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
R v Cottle

Thus, 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.

22

R v Clark

The decision as to an accused’s insanity is always for the jury and a verdict inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on that evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong.

23

R v Codere

Insane if dont know nature and quality of the act

R v Codere provides a succinct definition of what constitutes the nature and quality of an act.

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 woman’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.

24

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.

25

R v Joyce

R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.

Pihema was inside the service station with the firearm while Joyce was outside, Joyce was therefore not threatened with “immediate” death or grievous bodily harm from a person “who was present” when Joyce did the acts which made him a party to the offence.

26

Police v Lavelle

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 person’s interest or willingness to so offend.

Entrapment

Lavelle approached a male undercover police officer y use a prostitute (female undercover officer)
As the three of them left the hotel to go to his premises, Lavelle was arrested.

Although this offence would not have been committed without the aid of the undercover officers, they had merely given Lavelle the opportunity to commit the kind of offence which he had shown a willingness to commit. They had not been the instigators of interest in living off the earnings of prostitutes.

27

Penalty for attempted murder

14 years

28

Define R v Tarei

Withdrawal of any form of life support is not "treatment" under S166 CA 61.
Withdrawal does not cause death but removes possibility of extending death

29

Concealing dead body of child

Section + elements

181 CA 61

- Everyone who
- disposes of the dead body of a child
- in any manner
- with intent to conceal the fact of its birth
- whether the child died before, during or after birth

30

Which court does a youth facing a charge of murder or manslaughter appear?

Comittal process in the youth court then charges heard in the High Court