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Murder or manslaughter – standard case (Sections 167(a)–(b) and 171 Crimes Act 1961)

Charge 1: Murder or manslaughter under ss 167(a)–(b) and 171 Crimes Act 1961

[Note: This question trail combines the physical and mental elements of the underlying unlawful act (required for manslaughter) in question one.  This is because, in most cases, it will not be disputed that the defendant possessed the required mental state for the underlying unlawful act and, therefore, addressing both of the elements of the underlying unlawful act in one question will have limited practical effect.  Additionally, this question trail does not deal with the issue of whether the unlawful act was likely to cause more than trivial harm in relation to manslaughter: see R v Lee [2006] 3 NZLR 42 (CA) at [138].  The issue of whether the unlawful act was likely to cause more than trivial harm is only required to be put to the jury where the nature of the alleged act is such that this issue is arguable: see R v Lee [2006] 3 NZLR 42 (CA) at [139].  In the majority of cases, this point will not be in dispute and therefore is not dealt with in this question trail.  For a question trail where both issues are dealt with more comprehensively, see the question trail, “Murder or manslaughter – additional elements”.]

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means that you must be sure that each element is proved.

1.

Are you sure that Mr Smith intentionally hit Mr Jones on the head with a hammer on 14 January 2019?
 

If no, find Mr Smith not guilty. Do not continue.

If yes, go to question two.
2.

Are you sure that being hit in the head with the hammer was a substantial and operative cause of Mr Jones’ death?
 

A substantial and operative cause does not have to be the main or the only cause of death.  But, it must have played a part which was not insubstantial or insignificant.

If no, find Mr Smith not guilty.  Do not continue.

If yes, go to question three.

3. 

 

 

 

 

 

 

 

 

 

 

 

Are you sure that, when he hit Mr Jones on the head with the hammer: 

(a) Mr Smith intended to kill Mr Jones? 

OR

(b) Mr Smith:

(i) intended to cause Mr Jones bodily injury that was more than minor in nature; AND

(ii) knew that his actions were likely to cause Mr Jones’ death; AND

(iii) consciously ran the risk that Mr Jones could die as a result of his actions.

Bodily injury is harm that is more than trifling or transitory and which affects the health or comfort of the victim. 

“Knew” means that Mr Smith had an actual or conscious appreciation that death was likely. 

Likely” means that death could well happen or was a real risk. 

If no, find Mr Smith not guilty of murder, but guilty of manslaughter. 

If all 12 of you answer yes, find Mr Smith guilty of murder.
Notes

You need not all agree on which intent Mr Smith had.  But you must all be satisfied beyond reasonable doubt that Mr Smith had either the intent set out in question 3(a) or the intent set out in question 3(b).  Remember the intent set out in question 3(b) has three elements, all of which must be proved beyond reasonable doubt.  If some of you answer “yes” to Question 3(a) and the rest of you answer “yes” to all of questions 3(b)(i) and (ii) and (iii), then you would find Mr Smith guilty of murder.