Culpable Homicide

Question 1

What is the definition of homicide?

What section of the Crimes Act 1961 defines homicide?

Answer 1

Answer:
Homicide is the killing of another human being
Directly or indirectly
By any means whatsoever.

Answer:
Section 158

Question 2

Before a homicide can become the subject of a criminal charge what must be proved?

Answer 2

Answer:
It must be proved that the killing was blameworthy or culpable.

If the act was culpable it must be determined whether the act was murder, manslaughter or infanticide.

Question 3

What are the 2 critical factors to consider for a charge of murder?

Answer 3

Answer:
Whether the offender intended to:
- kill the person or
- cause bodily injury that the offender knew was likely to cause death

If neither of these intentions can be proven then the most likely charge is manslaughter.

Question 4

In any case where a person has been killed in a manner that does not amount murder, What is the appropriate charge?

What is an example?

Answer 4

Answer:
You can charge an offender with manslaughter.

Answer:
The offender may have failed to perform a legal duty (such as getting an ill or injured person medical treatment) or
May have acted unlawfully but not envisaged the possibility of death occurring.

Question 5

In the case of manslaughter can an organization be convicted as a party to the offence under section 66(1) of the Crimes Act 1961?

Answer 5

Answer:

Yes

Question 6

In the case of murder can an organization be convicted is either principal offender or a party to the offence?

Answer 6

Answer:

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

Question 7

Under section 159 of the Crimes Act 1961 what is defined as the killing of a child?

Answer 7

Answer:
Under subsection (1) ... A child becomes a human being within the meaning of this Act when it has clearly proceeded in a living state from the body of its mother, whether it is breathed or not, whether it has an independent circulation or not, and whether the naval string is severed or not.

Under subsection (2) …..The killing of such child is homicide if it dies in consequence of injuries received before during or after birth

Question 8

What does culpable homicide mean?

Answer 8

Answer:
It means the killing is blameworthy or sufficiently criminally responsible

It includes murder, manslaughter or infanticide.

Question 9

What does s150A of the Crimes Act 1961 apply to in regards to negligence?

When is the defendant criminally responsible?

Answer 9

Answer:
Any case where an unlawful act requires proof of negligence, or is a strict or absolute liability offence.

Answer:
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 11

Under the section 160 (2) What constitutes culpable homicide?

Answer 11

Answer:
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 willfully frightening a child under the age of 16 years or a sick person

Question 12

To prove culpable homicide under section 160(2)(a) by unlawful act, What must you prove?

Answer 12

Answer:

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

Question 13

What are some examples of culpable homicide where the offender has caused death?

Answer 13

Answer:

• Committing arson
• Giving a child an excessive amount of alcohol to drink
• Placing hot cinders in 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 onto a path of an approaching car
• Conducting an illegal abortion where the mother dies

Question 14

What does section 160(2)(b) refer to in the Crimes Act 1961?

What is covered in this subsection?

Answer 14

Answer:
Any death caused by an omission, without lawful excuse, to perform or observe any legal duty as defined by s160(2)(b)

Answer:
This covers cases where nothing is done when there is a legal duty to act, in certain cases of positive conduct accompanied by failure to discharge a legal duty, in particular a duty of care.

Question 15

What is defined by the expression legal duty?

Answer 15

Answer:
Legal duty refers to those duties imposed by statute or common law including uncodified common law duties.
The Crimes Act of 1961 defines duties to:

• 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 task such a surgery. (s155)
• Take precautions when in charge of dangerous things such as machinery. (s156)
• Avoid omissions that will endanger life. (s157)

Question 16

What would be an example where both an unlawful act and an omission to perform a legal duty are applicable to the same act?Refer to s160(2)(c)

Answer 16

Answer:
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 17

What does s160(2)(d) of the Crimes Act 1961 refer to in regards to guilt of culpable murder?

What must be proved in this respect?

Answer 17

Answer:
A person is guilty of culpable homicide if they caused a victim by threats, fear of violence or deception to do an act that results in the victims death.

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

Question 18

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

Answer 18

Answer:
- jumps or falls out of window and dies because I think they’re going to be assaulted

• Jumps into river to escape an attack and drowns
• Who has been assaulted and believes in life is in danger, jumps from a train and is killed

Question 19

Section 160(2)(e) of the Crimes Act 1961 covers frightening a child or sick person.
 This may be caused by any act that frightens the child or sick person, so long as it is done willfully.

What is willfully frightening?

Answer 19

Answer:

Wilfully frightening is regarded as intending to frighten, or at least be reckless as to this.

Question 20

According to Simester and Brookbanks, How is willfully defined?

Answer 20

Answer:
‘Willfully’ would require the offender intended to frighten, or is at least reckless as to the risk of that.

Mens rea should be interpreted to applying to all the elements in s160(2)(e). The defendant must be at least aware of a real risk that the victim is under 16 or sick

Question 21

What is culpable homicide as defined by statue s160 Crimes Act 1961?

Answer 21

Answer:
S160
(1) Homicide maybe 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) I will fully frightening a child under the age of 16 years or a sick person

Question 22

Is a homicide that is not culpable an offense?

Answer 22

Answer:

No

Question 23

What is killing by influence on the mind?

What section of the Crimes Act 1961 applies to this?

Answer 23

Answer:
Killing by influence on the mind alone is not a crime except as provided in s163
This would apply to someone who mentally tortures another person who’s already mentally or physically sick, so that the victim has a mental break down and commits suicide.

Question 24

What would be an example of section 163 in relation to killing by influence on the mind?

Answer 24

Answer:
Man goes the hospital for some ongoing complaint. For a joke hospital employees send him a letter saying he has terminal inoperable cancer.

If the man had, as a consequence, committed suicide, the sender of the letter would be charged under s163

Question 25

What is defined by statute in s163, Crimes Act 1961?

Answer 25

Answer:
No one is criminally responsible for the killing of another by any influence on the mind alone,
Except by willfully frightening a child under the age of 16 or a sick person,
Nor for the killing of another by any disorder or disease arising from such an influence, except by willfully frightening any such child as aforesaid or a sick person.

Question 26

What does the common law require in regards to the act of for culpable homicide?

Answer 26

Answer:
That the act must be one that is likely to do harm or is inherently ‘dangerous’ as well as being unlawful,

Refer to R v Myatt

Question 27

Who has the right to consent to death?

What does this mean in regards to criminal responsibility?

Answer 27

Answer:
No one has the right to consent to being killed (s63).

Answer:
If someone gave their consent to being killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 28

What happens if there is a death as a result of a lawful contest or games (eg. such as boxing, wrestling, football..)?

Answer 28

Answer:
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. E.g. boxer knocks out opponent then continues to hit them repeatedly even after referee has stopped the bout.

Question 29

To establish death What must you prove?

How can death be proved?

Answer 29

Answer:
– the death occurred
– the deceased is identified as a person who has been killed
– the killing is culpable

Answer:
Death can be proved by direct and/or circumstantial evidence.

Question 30

What are some examples of an exception of justification (non-culpable homicide) where the perpetrator is exempt from both criminal and civil liability?

Answer 30

Answer:
Such acts include;
- homicide committed in self-defense (s48)

– homicide committed to prevent suicide or commission of an offense which would be likely to cause immediate and serious injury to the person and property of anyone (s41)

Question 31

What is meant by no indefinite liability in relation to culpable homicide?

Answer 31

Answer:
Arbitrary rule that prevents indefinite liability from prosecution for culpable homicide after an assault, and the development of surgery and life support procedures has increased the chances of long delay before death.