General pt2 Flashcards
Murray Wright Ltd (1970) NZLR 476
Because the killing must be done by a human being, an organisation such as the hospital or a food company, cannot be convicted as principle offender.
s159 Killing of a child
- 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
- The killing of such child is homicide if it dies in consequence of injuries received before, during or after birth.
159 defines killing of a child and is therefore capable of murder under s158
Culpable homicide s160
Culpable homicide means the killing is blameworthy. It includes murder, manslaughter or infanticide.
Culpable homicide s160
(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
(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 the age of 16 or a sick person
(3) except as per s178 of this act, culpable homicide is either murder or manslaughter
(4) homicide that is not culpable is not an offence
Unlawful act means:
A breach of any Act, regulation, rule, or bylaw.
To prove culpable homicide, under s160(2)(a) you need to prove death was caused by, the above.
to be unlawful there must be proof of all the elements of the offence, including mens rea and it must be done without lawful justification or excuse. for example assault which has lead to death of victim, must prove the defendant intended to assault the victim and didnt have a defence like “self defence”
Common law requires the act:
Must be one that is likely to do harm or is inherently “dangerous” as well as being unlawful. (R v Myatt)
S150A- standard of care applicable to persons under legal duties or performing unlawful acts:
applies to any case where the unlawful act requires proof of negligence, or a strict or absolute liability of offence. In such case person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
In common law, allegations of culpable homicide have been supported where the offender has caused death by:
- committing arson
- giving a child 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 large piece of concrete over motorway bridge into oncoming car
- conducting an illegal abortion where the mother dies
Omission to perform legal duty: s160(2)(b)
Culpable homicide includes any death caused by an omission, without lawful excuse, to perform or observe any legal duty as defined in s160(2)(b). This covers cases where nothing is done when there is a legal duty to act, in particularly with a duty of care.
Legal duty refers to:
those duties imposed by statue or common law including uncodified common law duties: CA defines duties to:
- provide 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
Omission of legal duties can amount to homicide; death would not have occurred as and when it did had the defendant performed the duty in question and it must have been a “substantive and operative COD”
Unlawful acts and omission of duty s160(2)(c):
Can be applicable to the same act. eg you drive a car recklessly that you kill a pedestrian. is both and unlawful act and omission to observe your duty to take precaution when you are in charge of a dangerous thing (s156)
Threats, fear of violence and deception: s160(2)(d)
A person is guilty of culpable murder if they cause the victim by threats, fear of violence or deception to do an act that results in the victims death. must prove fear of V was well founded, but you do not need to show that the deceased action was the only means of escape.
Eg: jumps and 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
Threats, fear of violence and deception: s160(2)(d)
R v Corbett
The victims conduct must be such that it could be reasonably foreseen, is proportionate to the threat, or is within the ambit of reasonableness. although the victim might do the wrong thing or act unwisely, it is sufficient if the reaction is in the “foreseable range”
Killing by influence on the mind:
Killing by influence on the mind alone is not a crime except as provided in s163. this applies to someone who mentally tortures another person who is already mentally or physically sick, so the victim has a mental break down and commits suicide.
For example a man goes to the hospital for a test, as a joke a employee tells him he has cancer, as a consequence of this, victim commits suicide.
Legislation; s163 killing by influence on the mind:
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
Consent to death S63
No one has the right to consent to be killed. This means if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved in the killing
Death from lawful games or contests
In this case, eg boxing, wrestling, football, hockey etc. normally treated as non- culpable homicide. however if contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaugther.
proof of death:
To establish death you must prove that:
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable
Death can be proved by direct, and or circumstantial evidence.
No indefinite liability:
this arbitrary rule prevents indefinite liability for 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. defendant will not be relieved of responsibility merely because a life support system is turned off in good faith.
Exception of justification (non-culpable homicide)
s2 provides when an act is justified the perpetrator is exempt from both criminal and civil liability:
- homicide committed in self defence s48
- 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 any-one s41
(force in this circumstances is limited to force reasonably necessary)
Where charge of infanticide is laid, who decides on mother’s state of mind?
The jury
Infanticide s178 CA
- Where woman causes death of any child under the age of 10yrs
- in a manner that amount to culpable homicide
- and where at the time of the offence the balance of her mind was disturbed
- be reason of her not having fully recovered from the effect of giving birth to that child or any other child
- or by reason of the effect of lactation
- or by reason of any disorder consequent upon childbirth or lactation
- to such an extent that should not be held fully responsible
- she is guilty of infanticide
- and not of murder or manslaughter
- and is liable to imprisonment for a term not exceeding 3 years
Suicide pact - culpability
Any survivor of a suicide pact is guilty of being party to a death (if death of another person within the pact ensues)
Suicide pact - culpability
Any survivor of a suicide pact is guilty of being party to a death (if death of another person within the pact ensues)
Define “suicide pact” s183(3) CA
- common agreement between 2 or more persons
- having for its object the death of all of them
- whether or not each is to take his own life
- but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the act
- unless it is done while he has the settled intention of dying
- in pursuance of the pact
Define insanity
No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable;
A) of understanding the nature and quality of the act or omission; or
B) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standard of right and wrong
