Culpable Homicide

Question 1

The critical factors to consider for a charge of murder are whether the offender intended to:

Answer 1

• kill the person, or

* cause bodily injury that the offender knew was likely to cause death

Question 2

You can charge an offender with manslaughter in any case where

Answer 2

a person has been killed in a manner that does not amount to murder.

Question 3

a jury may return a verdict of manslaughter….

Answer 3

if it feels intent or any of the other elements of murder have not been proved

Question 4

What is homicide defined?

Answer 4

Section 158, CA 1961
Homicide defined

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

Question 5

Can a organisation be charged as a party to manslaughter?

Answer 5

Yes

Question 6

Can an organisation be charged with manslaughter or murder/parties to murder?

Answer 6

no

Question 7

Killing of a child

Answer 7

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 8

Culpable Homicide

Answer 8

160 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 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 of this Act, culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.

Question 9

Define unlawful act

Answer 9

a breach of any Act, regulation, rule, or bylaw

Question 10

To prove culpable homicide under section 160(2)(a) you need to prove

Answer 10

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

Question 11

In common law, allegations of culpable homicide have been supported where the offender has caused death by:

Answer 11

• 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 path of an approaching car
• conducting an illegal abortion where the mother dies.

Question 12

The expression “legal duty” refers to

Answer 12

those duties imposed by statute or common law including uncodified common law duties:

Question 13

Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to:

Answer 13

• 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 14

Omission of legal duties can amount to homicide. For the requisite causal connection, it seems that it must appear that

Answer 14

death would not have occurred as and when it did had the defendant performed the duty in question, and it must have been “a substantial and operative cause of death”

Question 15

Can an unlawful act and omission occur at the same time?

Answer 15

For example, 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 you are in charge of a dangerous thing (s156)

Question 16

under s160(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

under s160(2)(d) what do you need to prove

Answer 17

You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape.

Question 18

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:

Answer 18

• 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 19

define “Wilfully frightening”

Answer 19

“intending to frighten, or at least be reckless as to this”

Question 20

Simester and Brookbanks suggest “wilfully” would require

Answer 20

that the offender intended to frighten, or is at least subjectively reckless as to the risk of that. Mens rea should be interpreted as applying to all the elements in s160(2)(e), so that the defendant must at least have been aware of a real risk that the victim is under 16 or sick.

Question 21

Killing by influence on the mind

Answer 21

S163
Killing by influence on the mind

No one is criminally responsible for the killing of another by any influence on the mind alone, nor by any disorder or disease arising from such influence, except by wilfully frightening a child under the age of 16 years or a sick person

Question 22

Can you consent to being killed?

Answer 22

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 23

To establish the death, you must prove the:

Answer 23

• death occurred
• deceased is identified as the person who has been killed
• the killing is culpable

Question 24

Death can be proved by…..

Answer 24

direct and/or circumstantial evidence

Question 25

Can you charge someone with murder when no body is located?

Answer 25

yes

Question 26

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:

Answer 26

• 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 27

where acts are justified what is relevant to note about the force used?

Answer 27

that use of force here is limited to that which is reasonably necessary in the circumstances.

Question 28

Death must be within a year and a day

Answer 28

162
Death must be within a year and a day

(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.

Question 29

The provisions under section 162 (Death must be within a year and a day) apply to what

Answer 29

culpable homicide – that is, murder, manslaughter or infanticide.

Question 30

In the case of lawful contests and games (such as boxing, wrestling, football and hockey) the death of a participant from injuries received during the game or contest is normally treated as

Answer 30

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.