Homicide Flashcards
What is R v Tomars (too much) - Fear
Formulates the issues in the following way:
1) Was the deceased threatened by, in fear of or deceived by the defendant?
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 taken f the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences?
4) Did these foreseeable actions of the victim contribute to in a significant way to his death?
R v Tomars (too much)
3 examples threat, fear, violence
S160(2)(d)
Actions when prompted by threats, fear of violence or deception are when:
- 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
- Has been assaulted and believes their life is in danger, jumps from a train and is killed.
R v Horry (not located)
Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
Cameron v R (Reckless established)
Recklessness is established if
a) The defendant recognized that there was a real possibility that:
i) his or her actions would bring about the proscribed result, and/or
ii) that the proscribed circumstances existed, and
2) Having regard to that risk those actions were unreasonable
Define “Recklessly”
The conscious and deliberate taking of an unjustifiable risk.
R v Piri (Recklessness)
Recklessness involves the conscious, deliberate risk taking. The degree of risk of death forseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognize a “real or substantial risk” that the death would be caused.
What must be shown in relation to the defendant’s state of mind for S167(b)?
- Intended to cause bodily injury to the deceased
- Knew the injury was likely to cause death
- Was reckless as to whether death ensued or not
R v Murphy (attempts)
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the crown to establish an actual intent to kill.
Attempts - Two requirements to prove
(R v Murphy)
- Acts must be sufficiently proximate to the full offence (started the offence and gone past mere preparation)
- Several acts together may constitute an attempt (acts looked at collectively instead of independently)
R v Harpur (proximate)
The court may have regard to the conduct viewed cumulatively upto the point when the conduct in question stops…. The defendants conduct may be considered in its entirety. Considering how much remains to be done …… it always relevant, though not determinative.
Define Proximity (R v Harpur)
The determination of proximity is an inconclusive one and will come down to the circumstances as they exist for each individual offence that is being investigated.
Ask yourself: do the facts show more than mere preparation, or are the defendants acts or omissions immediately or sufficiently proximate to the intended offence?
What must you consider when a death occurs due to a sudden fight?
Whether the killing was:
- self defence
- the requisite for mens rea for a murder charge
- if the homicide can be justified as having arisen out of self defence (s48) the proper verdict is an acquittal
- it the fight negates that the defendant had the required mens rea to bring a charge within section 167 the proper verdict is manslaughter.
What are is the Purpose of Legal duties 150A?
A person is criminally responsible for failing to discharge or perform a legal duty, or performing an unlawful act, to which this section applies only if, in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies.
Define R v Blaue (as they are)
“Those who use violence must take their victims as they find them”
Liability depends on the mens rea not the victims subsequent actions.
Example: victim is stabbed and refuses a blood transfusion and subsequently dies, the defendant is liable
What was argued in R v Kirikiri?
That a charge of murder should not be proceeded because the reasonable inference from the evidence was that the treatment had not merely aggravated the victims condition but had caused death independently of the injuries which were merely “part of the history” rather than an operating substantial cause.
- Fact for the Jury to decide. Murder or attempted murder.
Aiding and Abetting suicide
Section 179
Everyone is liable for a term not exceeding 14 years who:
(a) Incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof: or
(b) aids or abets any person in the commission of suicide
Define Suicide pact
S180
(1) Everyone who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not for murder, and is liable accordingly.
(2) where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty to being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years: but he shall not be convicted of an offence against 179 of this act.
Under S181 what intent is required?
The requirement that the act of disposing must be done with the intent of concealing the fact of birth may be satisfied even though the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual.
When taking a statement from a dying person what should be considered under S16(1) of the evidence act 2006?
- nature of the statement
- contents of the statement
- circumstances relating to the making of the statement
- circumstances relating to the veracity of the person making the statement
- circumstances relating to the accuracy of the observation of the person
Define Justified.
Justified means that the person is not guilty of an offence and is not liable civilly.
Define protected from criminal responsibility.
Protected from criminal responsibility means the person is not guilty of an offence but civil liability may arise.
R v Forrest and Forrest (age)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
What is the Youth General rule?
All child offenders will be referred to the care and protection co-Cordinator until they reach 14 years of age.
Children aged under 10 years?
Offences committed by child under 10 years of age and action is desireable or necessary, consider having the child and family dealt with as a care and protection matter.
