Culpable Homicide

Question 1

Homicide defined

Answer 1

CA61; S158

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

Homicide can be culpable or not culpable.

Homicide must be culpable to be an offence.

Question 2

Can an organistation be convicted as party to the offence of manslaughter?

Answer 2

Yes.

Question 3

Can an organistation be convicted of murder?

Answer 3

No. This is because the offence carries a mandatory life sentence.

Question 4

Murray Wright Ltd

Answer 4

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.

Question 5

According to S159, when does a child becomes a human being?

Answer 5

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.

Question 6

According to S159, when is the killing of a child homicide?

Answer 6

if it dies in consequence of injuries received before, during, or after birth.

Question 7

What is culpable homicide and what does it include?

Answer 7

It means the killing is blameworthy. It includes murder, manslaugther or infanticide.

Question 8

When is homicide considered culpable?

Answer 8

CA61; S160(2):

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.

Question 9

What is an unlawful act?

Answer 9

CA61; S2:
A breach of any Act, regulation, rule or bylaw.

Question 10

To be culpable under S160(2)(a) what needs to be proven?

Answer 10

That death was caused (at least in part) by the breach of an Act, regulation, rule or bylaw.

Question 11

R v Myatt

Unlawful Act

Answer 11

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.

Question 12

Would breach of an electoral law be sufficient to prove culpability under S160(2)(a)? Why or why not?

Answer 12

No because although it is unlawful, it is not an act likely to do harm to the deceased nor is it an inherently dangerous act.

Question 13

What was held in R v Lee regarding an act being objectively dangerous?

Answer 13

The act must be objectively dangerous. That is, would a reasonable person in the shoes of the defendant know the risk of harm existed?

It was also held that “some” harm means “more than trivial” harm.

Question 14

Regarding S150A - Standard of care applicable to persons under legal duties or performing unlawful acts, when would a person be criminally responsible?

Answer 14

If the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.

Question 15

Provide some examples of culpable homicide through an unlawful act.

Answer 15

• 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 drunk person who subsequently dies from an overdose.

Question 16

What does the term ‘legal duty’ mean?

Answer 16

It refers to those duties imposed by statute or common law including uncodified common law duties.

Question 17

List some legal duties

Answer 17

• S151 - Provide the necessaries and protect from injury
• S152 - Duty of parent or guardian to provide necessaries and protect from injury
• S153 - Duty of employers to provide necessaries
• S155 - Use reasonable knowledge and skill when performing dangerous acts, such as surgery
• S156 - Take precautions when in charge of dangerous things, such as machinery
• S157 - Avoid omissions that will endanger life

Question 18

Is driving your car so recklessly that you kill a pedestrian an
* Unlawful act?
* Omission of duty?
* Both?

Answer 18

Both.

Question 19

R v Tomars is the leading case law on culpable murder caused by threats, fear of violence, or deception. How are the issues formulated within this case law?

Answer 19

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 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?

Question 20

Frightening a child or sick person

Answer 20

CA61; S160(2)(e):

The fright may be caused by any act that frightens the child or sick person, so long as it is done wilfully.

Question 21

Simester and Brookbanks - ‘wilfully frightening’

Answer 21

Intending to frighten, or at least be reckless as to this.

Question 22

Killing by influence on the mind - legislation

Answer 22

CA61; S163

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.

Question 23

In what circumstance might a person be guilty of ‘Killing by influence on the mind’?

Answer 23

Someone who mentally tortures another person who is already mentally or physically sick, so that the victim has a mental breakdown and commits suicide.

Question 24

Consent to Death

Answer 24

No one has the right to consent to being killed (s63). This means that, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 25

When might a person be guilty of manslaughter due to the death from lawful games or contests?

Answer 25

If the contestant causes the death of another by an act that is likely to cause serious injury.

Question 26

Homicide - establishing death

Answer 26

To establish death, you must prove the:
* Death occurred
* Deceased is identified as the person who has been killed
* The killing is culpable

Question 27

Where body is not located - R v Horry

Answer 27

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

Question 28

What are the critical factors to consider for a charge of murder?

Answer 28

Whether the offender intended to:
* Kill the person; or
* Cause bodily injury that the offender knew was likely to cause death.

Question 29

What are some examples of culpable homicide caused by threats, fear or deception?

Answer 29

When a person:
* 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
* Has been assaulted and believes their life is in danger, jumps from a train and is killed.

Question 30

What is the critical distinction between murder and manslaugther?

Answer 30

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