Culpable Homicide

Question 1

Define Homicide

Answer 1

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

Homicide must be culpable to be an offence

Question 2

Can an organisation be convicted of:
- manslaughter
- murder

Answer 2

Manslaughter: an organisation can be convicted as a party to the offence of manslaughter

Murder: an organisation cannot be convicted as either a principal offender or a party to the offence of murder. This is because the offence carries a mandatory life sentence

Question 3

Case law: Murray Wright Ltd

Answer 3

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 4

Killing of a child under sec 159 defines when a child becomes a human being, and therefore capable of being murdered. State the legislation

Answer 4

(1) a child becomes a human being when it has completely proceeded in a living state from the body of it’s mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the naval string is severed or not

(2) the killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth

Question 5

Define Culpable Homicide

Answer 5

Culpable homicide is the blameworthy killing of a human being by another, it includes murder, manslaughter or infanticide

Question 6

State the legislation under Sec 160 - Culpable Homicide

Answer 6

(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

(b) By an omission without lawful excuse to perform or observe any legal duty

(c) By both combined

(d) By causing that person by threats or fear of violence, or by deception, to do an act which causes his death

(e) By wilfully frightening a child under 16 years or a sick person

Question 7

Define Unlawful Act

Answer 7

Means a breach of any act, regulation, rule, or bylaw

The act must be one that is likely to do harm or is inherently dangerous, as well as being unlawful

Question 8

R v Myatt

Answer 8

Before a breach of any act, regulation, or bylaw would be an unlawful act under sec 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 9

Standard of care applicable to persons under legal duty or performing unlawful acts (Sec150A)

Answer 9

Applies where the unlawful act requires proof of negligence or is a strict or absolute liability offence.

The person is only criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.

Question 10

Allegations of culpable homicide have been supported where the offender has caused death by…

Answer 10

Committing arson

Giving a child an excessive amount of alcohol

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 over bridge into the path of an approaching car

Conducting an illegal abortion where the mother dies

Question 11

Omission to perform legal duty (Sec 160(2)(b)) covers cases…

Answer 11

Where nothing is done when there is a legal duty to act

Of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care

It must appear that death would not have occurred as and when it did had the defendant performed the duty in question. Must have been a substantial and operative cause of death.

Question 12

If death results from an omission to perform a legal duty, the defendant may be convicted of:

Answer 12

Manslaughter – provided there was insufficient fault

Murder – if the defendant had the requisite mens rea

Question 13

Define Legal Duty

Answer 13

Refers to duties imposed by statute or common law including uncodified common law duties

Question 14

Duties imposed by statute are mainly common law duties that have been embodied in statute. The crimes act defines duties to…

Answer 14

provide the necessaries and protect from injury (s151)

provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)

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 15

By both combined - unlawful acts and omission of duty (Sec 160(2)(c))

Answer 15

Sometimes both unlawful acts and omissions to perform a legal duty are applicable to the same act.

Eg: to drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when in charge of a dangerous thing (156)

Question 16

Threats, fear of violence, and deception (Sec 160(2)(d)

A person is guilty of culpable murder if?

Answer 16

They cause the victim by threats, fear of violence, or deception, to do an act that results in the victim’s death

Question 17

What must be proved for Sec 160(2)(d)?

Answer 17

You must prove that the fear of violence was well founded

Question 18

What don’t you need to prove for Sec 169(2)(d)?

Answer 18

You do not need to show that the deceased’s action was the only means of escape

Question 19

R v Tomars
(160 d - threats)

Answer 19

Formulates the issues in the following way:

1) Was the deceased threatened by, in fear of or deceived by the def?

2) If they were, did such T, F or D cause the deceased to do the act that caused their death?

3) Was the act a natural consequence of the actions of the def, in the sense that reasonable & responsible people in the defs 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

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception

Answer 20

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

who has been assaulted and believes their life is in danger, jumps from a train and is killed.

Question 21

Frightening a child or sick person (Sec 160(2)(e))

Answer 21

The fright need not be a result of fear of violence

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

Question 22

Define wilfully frightening

Answer 22

Intending to frighten or at least being reckless as to this

Question 23

Simester & Brookbanks suggests wilfully would require…

Answer 23

that the offender intended to frighten or is at least subjectively reckless as to the risk of that.

Defendant must at least have been aware of a real risk that the victim is under 16 or sick.

Question 24

Is killing by influence on the mind an offence?

Answer 24

No
Killing by influence on the mind alone is not an offence, except as provided for in sec 163
“Except by wilfully frightening a child etc”

Applies to someone who mentally tortures another person who is already mentally or physically sick, so the victim has a mental breakdown and commits suicide

Question 25

State the legislation for killing by influence on the mind (Sec 163)

Answer 25

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 26

Who has a right to consent to death?

Answer 26

No one has the right to consent to being killed (Sec 63).

This means, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 27

What does legislation say about death from lawful games or contests?

John is playing a closely scored game of rugby. He decides to make a hard tackle on an opposition player which results in that player breaking his neck and dying. Would john be charged with any offence, if so what offence?

Answer 27

The death of a participant from injuries received during the game or contest is normally treated as non-culpable homicide.

However, if a contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter

Question 28

Proof of death

To establish the death, you must prove three things

Answer 28

The death occurred

The deceased is identified as the person who has been killed

The killing is culpable

Question 29

R v Horry

Is the body required to prove the death of a person?

Answer 29

No

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 30

Some acts are justified even when they result in death. Give two examples of such acts

Answer 30

Homicide committed in self defence (Sec 48)

Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate or serious injury to the person or property of anyone (Sec 41)

Question 31

What is the critical distinction between murder and manslaughter?

Answer 31

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