Culpable Homicide

Question 1

Homicide defined

Answer 1

S158 CA61 - Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

Question 2

Killing of a child

Answer 2

S159(1) CA61 - 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.

S159(2) CA61 - the killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 3

Murray Wright Ltd (case law)

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

Culpable homicide - s160(2) CA61

Answer 4

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

Question 5

R v MYATT (re s160(2)(a))

Answer 5

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 6

Standard of care applicable to persons under legal duties or performing unlawful acts – s150A (x6)

Answer 6

1. Committing arson
2. Giving a child an excessive amount of alcohol to drink
3. Placing hot cinders and straw on a drunk person to frighten them
4. Supplying heroin to the deceased
5. Throwing a large piece of concrete from a motorway over bridge into the path of an approaching car
6. Conducting an illegal abortion.

Question 7

Omission to perform legal duty – s160(2)(b) (x6)

Answer 7

The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties:
Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to:
1. Provide the necessaries and protect from injury (s151)
2. Provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)
3. Provide necessaries as an employer (s153)
4. Use reasonable knowledge and skill when performing dangerous acts, such as surgery (s155)
5. Take precautions when in charge of dangerous things, such as machinery (s156)
6. Avoid omissions that will endanger life (s157).

Question 8

R v TOMARS (x4)

Answer 8

Formulates the issues in the following way:

1. Was the deceased threatened by, in fear of or deceived by the accused?
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 accused, in the sense that reasonable and responsible people in the accused’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 9

Define wilfully frightening

Answer 9

“Wilfully frightening” is regarded as:” intending to frighten, or at least be reckless as to this”. Adams on Criminal Law

Question 10

Killing by influence on the mind s163

Answer 10

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 11

Proof of Death (x4)

Answer 11

1. Death occurred
2. Deceased is identified as the person who has been killed
3. The killing is culpable.
   Death can be proved by direct and/or circumstantial evidence.

Question 12

R V HORRY (where body is not located)

Answer 12

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 13

Exceptions of justification (non-culpable homicide)

Answer 13

Note that some acts are “justified” even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability.
Examples of such acts include:
• Homicide committed in self-defence (s48)
• Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one (s41).

Question 14

Section 162 CA61

Answer 14

162 Death must be within a year and a day (Applies to culpable homicide, murder, manslaughter and infanticide)

1. No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death
2. The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place
3. Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased
4. Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last