Homicide

Question 1

What is R v Tomars (too much) - Fear

Answer 1

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?

Question 2

R v Tomars (too much)
3 examples threat, fear, violence
S160(2)(d)

Answer 2

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.

Question 3

R v Horry (not located)

Answer 3

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.

Question 4

Cameron v R (Reckless established)

Answer 4

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

Question 5

Define “Recklessly”

Answer 5

The conscious and deliberate taking of an unjustifiable risk.

Question 6

R v Piri (Recklessness)

Answer 6

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.

Question 7

What must be shown in relation to the defendant’s state of mind for S167(b)?

Answer 7

• 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

Question 8

R v Murphy (attempts)

Answer 8

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.

Question 9

Attempts - Two requirements to prove
(R v Murphy)

Answer 9

• 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)

Question 10

R v Harpur (proximate)

Answer 10

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.

Question 11

Define Proximity (R v Harpur)

Answer 11

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?

Question 12

What must you consider when a death occurs due to a sudden fight?

Answer 12

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.

Question 13

What are is the Purpose of Legal duties 150A?

Answer 13

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.

Question 14

Define R v Blaue (as they are)

Answer 14

“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

Question 15

What was argued in R v Kirikiri?

Answer 15

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.

Question 16

Aiding and Abetting suicide
Section 179

Answer 16

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

Question 17

Define Suicide pact
S180

Answer 17

(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.

Question 18

Under S181 what intent is required?

Answer 18

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.

Question 19

When taking a statement from a dying person what should be considered under S16(1) of the evidence act 2006?

Answer 19

• 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

Question 20

Define Justified.

Answer 20

Justified means that the person is not guilty of an offence and is not liable civilly.

Question 21

Define protected from criminal responsibility.

Answer 21

Protected from criminal responsibility means the person is not guilty of an offence but civil liability may arise.

Question 22

R v Forrest and Forrest (age)

Answer 22

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.

Question 23

What is the Youth General rule?

Answer 23

All child offenders will be referred to the care and protection co-Cordinator until they reach 14 years of age.

Question 24

Children aged under 10 years?

Answer 24

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.

Question 25

Child 10-13 years commits murder?

Answer 25

If a child commits a cat 4 offence they are usually dealt with under the justice provisions of OT act 1989. Charges are filed in the district court, the first appearance is in the Youth court and then automatically transfers to the High court for trial.

Question 26

Certain offences require intent, examples:

Answer 26

No intent required:
EBA, for defence to succeed on this charge a person must prove a total absence of fault. In other words, the person drove without conscious appreciation of the fact of driving, or of the fact of intoxication.

Intent required:
Any offence that has intent as an element of the offence. An example is assault which requires intent (to apply force to another person)

Question 27

Who doe the ignorance of law under S25 of the CA 61?

Answer 27

This ruling applies whether the offender is from this country or from overseas.

Question 28

What was held in P v Taggart?

Answer 28

The defendant obtained some tablets labeled “minumbin” which he knew were designed to stimulate sexual activity but did not know that the active ingredient was an alkaloid of yohimba which was a statutory poison.

The fact that a person did not know that a drug was a poison is an ignorance of the law and has no defense.

Question 29

When is the threat of GBH applicable?

Answer 29

The threat of death or Grievous bodily harm must be immediate and from a person present at the time.

However, different standards may suffice when woman and children act under threats.

Question 30

What was held in R v Joyce?

Answer 30

The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed.

Question 31

Who decides the evidential threshold for S48?

Answer 31

The Judge decides whether evidence that could be the basis for self defense under S48 is fit to be left to the jury.

Question 32

What was held in R v Cook?

Answer 32

Consent must be “real, genuine or true consent, and may be conveyed by words or conduct or both”

Question 33

What was held in Murray Wright LTD?

Answer 33

Because the killing must be done by a human being, an organization (such as a hospital or food company) cannot be convicted as a principal offender.

Question 34

Under S158 what is held in relation to organizations?

Answer 34

Manslaughter - an organization can be convicted as a party to the offence (66(1))

Murder - an organization cannot be convicted as either a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence.