1 - Homicide law Flashcards
Critical factors to consider for a charge of murder:
The offender intended to:
-Kill the person, OR
-Cause bodily injury that the offender knew was likely to cause death
S158 - Homicide Defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Homicide Defined - Case Law
Murray Wright Ltd: [1970] NZLR 476:
because the killing must be done by human being, an organisation (such as a hospital or Food company) cannot be convicted as a principal offender.
S159 - Killing of a child
S159 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.
S160 - Culpable Homicide
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 or her 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, culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.
Definition - unlawful act
S160(2)(a)
Means a breach of any act, regulation, rule, or bylaw
By unlawful act S160(2)(a) - Caselaw
R v Myatt
[before a breach of any act, regulation or by law would be an unlawful act under section 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.
A 150A - Standard of care applicable to persons under legal duties or performing unlawful acts
)
This section applies in respect of—
(a)
the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157; and
(b)
an unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.
In such a case the person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the circumstances .
S160(2)(d) threats, fear of violence and deception - case law:
R V Tomars:
Formulates the issues 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 actions of the defendant, in the sense that reasonable and responsible people in the defendants 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?
Examples of culpable homicide caused by threats of fear:
S160(2)(d)
-Jumps or falls out of a window and dies because they think they’re going to be assaulted
- Jumps into a river to escape in attack and drowns
-Has been assaulted and believes their life is in danger, jumped from a train and is killed.
Wilfully frightening - definition:
Simester and Brookbanks:
Willy would require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that
S163 - Killing by influence on the mind
No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully 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 wilfully frightening any such child as aforesaid or a sick person.
Example: a man to a hospital test for a stomach complaint and is a joke. A hospital employee sent him a letter saying he was terminally ill. The man then takes his life through suicide.
Proof of death - you must prove:
- death occurred
- deceased is identified as a person who has been killed
-The killing is culpable
Where no body is found - case law:
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 as other than murder can affect be accounted for.
Exception of justification (non-culpable homicide)
- self defence (S48)
- to prevent suicide or commission of an offence which would likely cause immediate and serious injury to the person or property of anyone (S41)
