1. Cuplable Homicide

Question 1

In relation Murder or Manslaughter, the critical factors to consider when looking at charges of Murder or Manslaughter, are?

Answer 1

Whether the offender intended to:

• Kill the person OR
• Cause bodily injury that the offender knew was likely to cause death.

Question 2

If intention cannot be proven to establish murder what charge should you be looking at?

Answer 2

Manslaughter

Question 3

A person Dies

• Was death caused by another human?

Answer 3

Yes - Were the actions of the other person culpable?

No - No offence has been committed

Question 4

Yes - Were the actions of the other person culpable?

Answer 4

Yes - Was the outcome of their actions intentional and deliberate?

No - the offender is liable for Manslaughter

Question 5

Yes - Was the outcome of their actions intentional and deliberate?

Answer 5

Yes - the offender is liable for murder

Question 6

What is the definition of Homicide?

Answer 6

Section 158

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

Question 7

What must homicide be in order for it to be an offence?

Answer 7

It must be culpable

Question 8

Can an organisation be convicted as a party to Manslaughter?

Answer 8

Yes (section 66(1) )

Question 9

Can an organisation be convicted of Murder?

Answer 9

No, it cannot be convicted as either a principal offender or a party to Murder because it carries a mandatory life sentence.

Question 10

What was found in “Murray Wright Ltd” (1970)

Answer 10

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.

Question 11

Killing a child - what section defines when a child becomes a human being and is therefore capable of being murdered under section 158?

Answer 11

Section 159

(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.

Question 12

Culpable homicide means?

Answer 12

The killing is blameworthy. It includes murder manslaughter or infanticide.

Question 13

What section defines Culpable homicide?

What does it it say about homicide being culpable in subsection 1?

Answer 13

Section 160(1)

Homicide may be either culpable or not culpable

Question 14

What circumstances are outlined in 160(2) that makes Culpable Homicide?

Answer 14

Subsection 2

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 death OR
e) By wilfully frightening a child under the age of 16 years or a sick person.

Question 15

Is there an exception when murder or manslaughter not culpable homicide?

Answer 15

Yes section 160(3) states murder or manslaughter is not culpable homicide under section 178 of the Act.

Question 16

What is the definition of “unlawful act” under section 2?

Answer 16

It means a breach of any Act, regulation, rule or bylaw.

Question 17

In relation to unlawful act what needs to be proven?

Answer 17

This relates to 160(2)(a) where it states by means of any unlawful act, which you will need to prove that death was caused by this act.

Question 18

What does common law say about unlawful act?

Answer 18

It says it must be an act that is likely to cause harm or inherently dangerous, as well as being unlawfully.

Question 19

What is the leading case in relation to Unlawful Act? And what does it say?

Answer 19

R v Myatt

It says;

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.

Question 20

What was found in the case R v Lee?

Answer 20

The unlawful act must objectively be dangerous, that is would a reasonable person in the shoes of the defendant know the risk of harm existed? It also was held that “some” harm means more than “trivial” harm.

Question 21

In summary of unlawful act, what needs to be proven?

Answer 21

• Proof of all of the elements of the offence
• Including any mens rea and it must be done without any lawful justification or excuse.

For example - where an assault has led to a death you must prove that the assault was intentional and that the victim didn’t have a defence such as self defence.

Question 22

Standard of care - what section applies to this when unlawful act is of an issue?

What does this section outline?

How does it relate to a person being criminally liable?

Answer 22

Section 150A

It points out that UNLAWFUL acts requires proof of negligence OR is a strict OR absolute liability offence.

A person can only be liable or responsible if the act is a MAJOR departure from the STANDARD OF CARE expected from a reasonable person in the circumstances.

Question 23

In common law, allegations of culpable homicide have been supported of action that a person has caused death, what are some of these circumstances?

(Section 150A)

Answer 23

• 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 motorway
• conducting an illegal abortion where the mother dies

Question 24

Can culpable homicide include acts of omissions?

And what section supports this?

If so, what charges can a person be looking at?

Answer 24

Yes

Section 160(2)(b) covers when there has been not act done when there is a duty of care required.

A person can be charged with manslaughter if there was a duty of care required but a deliberate failure to discharge that act of care.

Question 25

What is the expression of “LEGAL CARE”?

Answer 25

Means there is a legal duty that is imposed by statute OR common law including uncodified common law duties.

Question 26

What are the duties that are defined in the Crimes Act 1961?

Answer 26

• Provide the necessaries and protect from injury (Section 151)
• Provide necessaries and protect from injury to your children when you are a parent or guardian (section 152)
• 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)

Question 27

Can OMISSIONS of legal duty amount to homicide?

Answer 27

Yes it can but it must appear that death would not have occurred if the duty had been carried out AND it must have been a SUBSTANTIAL and OPERATIVE cause of death.

Question 28

Unlawful Act and Omission of Duty, what section is

this?

Answer 28

Section 160(2)(c)

Question 29

In relation to section 160(2)(c) give an example when an unlawful act and omission is applicable to the same act?

Answer 29

When you drive your car recklessly that you kill a pedestrian. You commit an unlawful act by driving a car recklessly AND fail to observe your duty to take precautions when you are in charge of a dangerous thing (s156)

Question 30

What do you need to prove under section 160(2)(d)?

Answer 30

Need to prove that the death was caused by threats, fear of violence or deception to do an act that results in the Victim’s death.

This extends that the fear of violence was well founded but you do not have to show that the deceased’s action was the only means of escape.

Question 31

Section 160(2)(d) continued…

What was found in R v Corbett in relation to the Victim’s actions?

Answer 31

It must be such that it:

• could be reasonably foreseen OR
• that it was proportionate to the threat OR
• within the ambit of reasonableness

Although that the Victim may have done the wrong thing or act unwisely it is sufficient if the reaction is foreseeable range.

Question 32

In R v Tomars - how are the issues formulated in relation to threats, fear or deception?

Answer 32

It formulates it 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 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 consequence?

4- Did these foreseeable actions of the victim contribute in a SIGNIFICANT way to his death?

Question 33

What are some of the examples of culpable homicide which have been a result of threats, fear or deception?

Answer 33

When a person:

• Jumps or falls out of a window and dies because they think they are going to be assaulted.
• Jumps in to a river and drowns as a result
• Who has been assaulted and believes their life is in danger and jumps from a train ans is killed.

Question 34

What is outlined in section 160(2)(e)?

Answer 34

Frightening a child (under 16 years) or sick person.

Question 35

What is “frightening” under section 160(2)(e)?

Answer 35

It has to be WILLFULLY done, regarded as intending to frighten, OR at least be reckless as to this.

Question 36

Does mens rea apply to 160(2)(e)?

Answer 36

Yes it does, it has to apply to all of the elements and that willfully intended to frighten but will also have to be aware that the child is under 16 years old.

Question 37

Killing by influence on the mind - what section is this?

Give an example of this?

Answer 37

Section 163

If someone mentally tortures someone who already mentally or physically ill and they have a mental breakdown and commit suicide.

Another example of this a man took test at hospital for a stomach complaint, a week later gets a letter in the mail from a staff member who does this as prank saying they have terminal and inoperable cancer. As a result of this the male commits suicide.

Question 38

What does section 163 say about the responsibility of a person who influences a killing of another?

Answer 38

No person is criminally responsible for the killing of another person by ANY INFLUENCE on the mind ALONE, except by willfully frightening a child under 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.

Question 39

Is there a right to consent to being killed?

Answer 39

No, no one can consent to being killed, this is set out under section 63. This will not affect the criminal responsibility of anyone responsible for the killing of another.

Question 40

In relation to lawful contests or games, can a person be guilty of manslaughter if a person is killed while playing?

Answer 40

Only if the act is done with the measure that the act could lead to serious injury.

Question 41

To establish death what must you prove?

Answer 41

1 - A death occurred

2 - Deceased is identified as the person who has been
killed

3 - The killing is culpable

Question 42

How can death be proved?

Answer 42

It can be proved through DIRECT and/or CIRCUMSTANTIAL evidence.

Question 43

What case law covers when a body is not located?

And what was found in this case?

Answer 43

R v Horry

It was outlined:

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 acts be accounted for.

MORALLY CERTAIN
LEAVE NO GROUND FOR REASONABLE DOUBT
CIRCUMSTANTIAL EVIDENCE SHOULD BE SO COGENT and COMPELLING