Homicide Flashcards
Introduction
Everything before is just fundamental principles
Homicide → First time we are talking about a criminal offence that someone can be convicted of
For example → homicide can be caused by an omission → what is an omission → Refer to the law that we went through
The defendant has to cause death → how do we determine that? We have gone through the law of causation
Put the pieces together
Homicide:
•3 types of homicide offences:
1.Murder (presumption of life imprisonment)
2.Manslaughter (max of life imprisonment)
3.Infanticide (max 3 years imprisonment)
Three types of Homicide offences in New Zealand
We have murder → manslaughter → And infanticide
So if you prove a homicide → your next question is which one of the three types above is it?
The most common types are murder and manslaughter
Infanticide → is technically a third form of homicide → but in effect it operates as a defence to either murder or manslaughter
One of those two most serious versions of homicide (murder and manslaughter)
Infanticide arises in → a very specific and not very common set of circumstances
Infanticide → applies when a mother who has given birth or breastfeeding → develops a mental disorder as a consequence → and kills one of her children (not necessarily the one she has given birth to) but one of her children who is under 10
Unusual set circumstances for infanticide
The reason why infanticide is a defence → is that you have a maximum penalty of three years imprisonment → versus
For Murder or manslaughter → either a presumption of life imprisonment → or a maximum penalty of life imprisonment
Hard to find a case in NZ where infanticide has been successfully raised where in fact the defendant has gone to prison → generally they are given a community sentence
In effect → if you can establish infanticide → its kind of like a partial defence → to murder or manslaiughter
Of these three types of offences → the consequences that flow on from them are significantly different.
Consequences that flow on from Murder are the most serious → because it is archetypically the most serious crime that we have in our books.
Murder → carries a presumption of life imprisonment
So if you can’t overturn that presumption → that is what is going to happen
And that can only be overturned where → according to the Sentencing Act → given the circumstances of the offence and the offender → a sentence of imprisonment for life would be manifestly unjust
The Courts have interpreted the above in a narrow (stingy) way → they have said it is not enough that the offender has a mental health issue for example
The only two circumstances that its commonly acknowledged that it might be appropriate to overturn the presumption of life imprisonment are →
Mercy killings in terminal situations → for example euthanasia →
And women who have been abused who have killed their abusive partners → couple cases where the presumption of life imprisonment was overturned
For example the case of Wihongi (2011) and Rihea (2012) → both of those cases the women still got very long periods of imprisonment → ten years and twelve years
So not light sentences of imprisonment → in acknowledgement of the fact that they have committed murder
There are certain circumstances in relation to murder → there is a list of criteria in the act → where you can have a minimum period of non parole specified
Non parole → you cant even apply to be released from prison until you have served that period
William Bell case for example → the minimum period of non-parole was 23 years
So spending 23 years in prison at the point of 23 then you can apply to start serving out rest of your sentence in the community → and you may not get that → parole board decides if you are safe to go back into community
Sentences of life imprisonment are onerous → monitored when outside
Recalled back because can’t find accommodation etc.
For manslaughter – Section 177 of the Crimes Act → proscribes life imprisonment as the maximum sentence → For manslaughter its a genuine sentencing discretion
Could get life → but only be for the most egregious manslaughter cases → generally those are the ones that look really close to murder
There is a genuine sentencing discretion → typically starting point for manslaughter will be considerably lower than life
Homicides are wildly diverse offences → under all sorts of circumstances → don’t have a guideline sentencing judgement for that reason
Sometimes Taueki may be used → but in some cases not
The types of homicides that attract media attention:
When you look at the sorts of homicides that attract media attention → Homicides are a tiny part of the crimes committed but get alot of attention
Homicides that attract media attention in NZ → cold blooded planned or opportunistic
Perpetrators is a psychopath/has a history of violence or sexual deviance
The killing involves extreme brutality (“overkill”)
Popular culture:
•Predator is a serial killer – multiple victims
•They go to great lengths to conceal the crime
•The killer and the victims are often strangers to each other
Popular culture → you will find less likely to happen in fact
Real life different from movie
NZ haven’t had serial killer → but had mass homicides
For example Aramoana →
And 2019 terrorist attack
Mouzos:
•Spontaneous outbursts in highly charged circumstances
•Killer and victim usually known to each other (50% are family violence killings)
•Murder has the highest clear up rate of any criminal offence
•A significant % of killers have no previous criminal convictions and the majority have no convictions for violent offences
•The majority have no psychiatric history or mental disorder
•The majority will never kill again and they are less likely than other offenders to reoffend at all
•In a significant minority of cases the offender commits suicide afterwards
The reality of homicide is it is different to pop culture
Most killings according to Mouzous are spontaneous outbursts in highly charged circumstances
Less than 50% are family violence killings
Highest clear up rate of any criminal offence →
Lot of offending that happens which are dark figures → some crimes are not reported
Highest clear up rate → very difficult to disappear a human being → do have historical murders that show up or clear up after the event but not often
With historical homicides → the criminal always that applies is always the law that applied when the law was committed
Fundamental right in our BORA → not to be tried by law that was not in force when you committed the crime
Even though we have abolished the partial defence as to homicide → The defence of provocation
If you have a homicide that occurred before the defence was abolished → you will have to argue the defence of provocation if its applicable on the facts
Many people who kill have no previous convictions →
People kill in a whole range of moral circumstances that we might imagine if just relying on pop culture → that is why we have a flexible sentencing structure especially for manslaughter
The Law on Homicide:
•Homicide defined: s 158
•Culpable or non-culpable: s 160
•Murder: ss 167, 168
•Manslaughter: ss 169, 171
•Infanticide: s 178
Lot of law gets sorted out → Because they get our best barristers go to our highest Courts → reported on in the media → more funding →
Any principles of law that are opaque → and going to be appealed by defence counsel who are trying to get a jury verdict overturned its usually going to be in these kinds of cases
Which is why a lot of the law fleshing out what omissions and causation takes place in homicide cases → even though those principles or building blocks aren’t unique to homicide
Structure of legislation above → clunky → law on homicide if dealing with a set of facts
Essentially → what a homicide is is defined in s 158 of the Crimes Act
Then after determine whether or not you have a homicide → determine whether it is culpable or not culpable → Find answer in s 160 of the Crimes Act
If you determine that you have a culpable homicide → your question then becomes whether its murder or manslaughter? →
Unless it falls into the category of infanticide → rarely
If its murder → it will satisfy the requirements of either s 167 or s168
If its manslaughter → it will be dealt with in accordance with s 169 and s 171
And if its infanticide → meet the criteria in s 178
Asking yourself a number of questions
Homicide:
•Is it a homicide? (human being, causation, year and a day)
•If no – acquitted
•If yes – is it a culpable homicide? (s 160(2) sets out culpable events – in practical terms it is easier to deal with causation here).
•If no – acquitted.
•If yes – is it murder? (Is there the mens rea for murder under ss 167-168)
•If yes – murder conviction
•If it is not murder then it is automatically manslaughter (leaving aside the issue of infanticide).
Ask yourself a number of questions
Your first question is whether you have a homicide at all? → and that depends on whether you have a human being killing a human being → no longer the case that that death has to occur within a year and a day (unless older homicides)
If your answer to the above question is nobody caused anyone’s death → the defendant would be acquitted.
If there is a homicide next question is whether its a culpable homicide → in s160(2) → sets out culpable events
The reason why you wouldn’t follow the legislative structure → The structure in the Crimes Act → because it is confusing to deal with the question of causation → go down a rabbit hole if you dealt with causation before you dealt with whether there was a culpable homicide.
The reason for that is → to prove a culpable homicide in most cases you will be trying to prove an → unlawful act that caused death → or an omission that caused death
And you can’t really ask yourself whether causation is satisfied → until you identify what you are relying on to make the homicide culpable →
So you have to find an omission or find an unlawful act that is also dangerous → Then you have to apply the causation tests to that
Because its no good having a lawful act and unlawful act → and the lawful act infact causes death → but you have spelt out a unlawful act in the circumstances that wont be a homicide
So you can’t really deal with causation in the abstract → whether the defendant caused death → until you identify what is it that you are wanting to find caused death → because that would make it a culpable homicide
So it might be easier to deal with causation down where you are asking the question → whether its a culpable homicide
Even though → causation is technically part of the question of whether or not you have a homicide in the first place
So if you don’t have a culpable homicide → for example the defendant has caused death → but caused death by a perfectly lawful act → or an unlawful act that was not objectively dangerous
Nobody would have foreseen the outcome that occured → then you have a homicide but its not culpable and the defendant should be acquitted of homicide.
They might still be convicted if there is an unlawful act but its not objectively dangerous → they might still be convicted of that but they won’t be convicted of homicide
If the answer is Yes → you do have a culpable homicide → your next question becomes is it murder?
The reason for that is anything that is not murder is by default manslaughter → so basically manslaughter is this residual category of culpable homicides that are not murder
So your question if you have proved you have a culpable homicide then becomes → is there the mens rea for murder? → either under s 167 → which sets out reckless and intentional murder → or it could be a felony murder under s168 →
So if you satisfy s167 or s168 → then you are talking about a murder conviction → if not → the you’re talking about a manslaughter conviction
Unless you’ve got this really weird situation of infanticide → which come along atypically
Flow diagram → to show how you would work through the issue
Homicide: s 158:
•“the killing of a human being by another, directly or indirectly, by any means whatever.”
Defines a homicide → above
Unpack the above to show that there are a number of legal issues involved in establishing a homicide.
Homicide: Legal Issues:
•Is the victim a human being? (when does a person start and stop being a human being: birth and death)
•Is the accused a human being?
•Has the accused caused the victims death? (note: although this is part of the definition of homicide, causation is best dealt with when determining whether it is a “culpable homicide” – ie at the next stage of inquiry)
•Has death occurred within a year and a day (only for cases prior to 12 March 2019)?
Whether the victim is a human being? → really that only becomes an issue where in cases in where there is a question of whether they have started to be a human being → or whether they have stopped being a human being → in other words whether they were already dead
Because you cannot kill a dead person.
If the victim is already dead → your client cannot be guilty of murder.
Then you have to ask yourself → is the accused a human being?
And then whether the accused has caused the victim’s death? → because if they haven’t then there is no homicide.
But actually when you are answering an exam question → much easier to address causation when you have identified what makes your death a culpable homicide first.
Then for cases prior to the 12th of March 2019 → which will be pretty rare → for example body shows up or unsolved murder is solved → then the question is whether death occurred within a year and a day. → don’t have to worry about this in most cases.
What does a person become a Human Being?
•s 159: “(1) A child becomes a human being… 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 naval string is severed or not.”
Section 159(2) The killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth.”
First question → when does a person become a human being?
And section 159 (1) → of the Crimes Act states above → completely proceeded in a living state from the body of its mother. → the rest does not matter.
Used to be the case at common law that → the child had to completely come out of the mothers body and breathe or that the cord had to be cut
That is not the case → but it does have to completely get out of the mothers body in a living state.
And once a child becomes a human being → only then are they able to be the victim of a homicide.
And section 159 (2) → provides that is so even if the injury that causes their death was inflicted before they became a human being → so whilst they were in the womb for example.
182 Killing Unborn Child:
(1) Every one is liable to imprisonment for a term not exceeding 14 years who causes the death of any child that has not become a human being in such a manner that he or she would have been guilty of murder if the child had become a human being.
If the child is not yet a human being → for example when a pregnant woman is attacked.
If the child is born before they have become a human being according to section 159 → then the offence is not a homicide.
So your not talking about a murder or manslaughter → you are talking about either → offence of killing an unborn child or talking about a termination
The offence of killing an unborn child is set out in section 182 (1) → carries a term of imprisonment of 14 years max for a person who causes the death of any child that has not yet become a human being → in such a manner that he or she would have been guilty of murder if the child had become a human being
So in other words → you are going to have to demonstrate causation → and you are going to have to demonstrate either an unlawful act → assault for example → and also have to prove the mens rea for murder → intention or recklessness
Section 182:
(2) Nothing in subsection (1) applies to any person who before or during the birth of any child causes its death by—
(a) a means employed in good faith to preserve the life of the child’s mother; or
(b) providing abortion services in accordance with section 10 or 11 of the Contraception, Sterilisation, and Abortion Act 1977.
Section 182 → creates some defences → to the offence of killing an unborn child
Subsection 2 provides → nothing in subsection 1 applies to any person who, before or during the birth of any child causes its death by
(a) a means employed in good faith to preserve the life of the childs mother
(b) providing abortion services in accordance with section 10 or 11 of the Act above
Abortion only very recently became legal
Relied on the defence of necessity for abortion → which is why abortion was available on demand →
Defence of necessity → ancient common law doctrine that you can commit a crime under emergency circumstances → or when the harm of the crime is outweighed by the harm that would be caused if you didn’t commit it.
Abortion was available on demand → in the interests of the life and health of the mother → and the standard of necessity was codified in the Crimes Act → and the test was more extreme if talking about a termination over a certain period of time
If its a termination very early on in the pregnancy abortion was available on demand → Doctors took womens word → as to whether carrying the child would be something problematic for them
Once you reached a certain point then you had to demonstrate some kind of threat to the mothers life.
Abortion is now legally available → if you go through correct process → no longer a criminal offence in which rely on necessity defence → we have process which means no question of prosecution so long as you go through that process
Doctors don’t have to if they have a conscientious objection.
183 Abortion procured by person other than health practitioner:
(1) A person commits an offence and is liable on conviction to a term of imprisonment not exceeding 5 years if the person is not a health practitioner and—
(a) procures, or attempts to procure, an abortion for a woman; or
(b) performs, or attempts to perform, an abortion on a woman.
If you cause harm to a child before it’s born your either talking about s 182 → killing an unborn child
Or you could be talking about → the tiny section of cases where abortion still is a crime → where the person hasn’t gone through the appropriate process → To have it done by a properly licensed practitioner
Section 183 → creates the offence of an abortion procured by a person other than a health practitioner.
Provides that a person commits an offence and is liable on conviction to a term of imprisonment not exceeding five years.
If the person is not a health practitioner and procures or attempts to procure an abortion for a woman
Or performs or attempts to perform an abortion on a woman
And there is a defence for the woman herself under this provision.
Line between an abortion and killing an unborn child hard to find
When does a foetus become an unborn child → that is a really murky question in the case law
Safe to say at one end of the spectrum when a person just becomes pregnant → your talking about a foetus → so talking about an abortion → at some point once the child is viable outside the womb → you are talking about killing an unborn child → and at some point on that continuum the foetus turns into an unborn child
But the case law is really vague on when that happens
Section 183:
(2) The woman is not guilty of an offence under this section.
Re a (Children) (conjoined twins) [2001] 2 WLR 480:
Case which illustrates problems that the law has
Because law is built on this idea that people are separate from other people
That what makes a person a human is that they have got these bodily boundaries that are independent of other people → that is not always the case
This was a case where people weren’t inseparable because they were born conjoined → pregnancy itself has always been a challenge for the law → because two separate people but mothers body encompasses both
Law used to struggle with that → some people have used that to argue that the law has historically evolved → almost all lawyers used to be male → male life experiences → males don’t get pregnant
So the law struggled → is this two people or is it one person? If its two people then the mother is just this sack → and the foetus is completely independent of her even though completely dependent in reality
Or the foetus is just not a person its just like her arm or her leg → Theorists (such as Luce Irigiray) arguing that → if we come from women’s experience → which incorporate this life experience of being pregnant and of being penetrated → then actually bodily boundaries are not that stark
This was a case where Conjoined twins were born
Famous case because it went all the way up to the House of Lords
They were at a hospital who wanted to seperate them
The twins were → Mary and Jody
Jody had a chance of survival without Mary → but Mary had no chance of survival → if separated Mary would immediately die
Mary’s brain was very primitive → Wasn’t even certain that she was conscious
But the fact of the matter was → if they were not separated they would die from the strain on Jody’s heart → They were both going to die very soon → because Jody’s body was too little to sustain two bodies
Anticipated to die at about 3 to 6 months.
They were so joined that Lord Justice Ward → said he didn’t know if they were separate people → or the more horrifying concept of a person with two heads
One of the questions was whether Mary was even a person → because she was incapable of having a life independent of her sister’s heart and lungs
And Lord Justice Ward → said a life is in being → have to be capable of independent existence → out of the body of your mum and capable of independent existence.
And Lord Justice Ward said → that Mary had not achieved the status of being a human being → she was out of her mother’s body → but she was not capable of independent existence
And all of the HOL used the law in different ways → in ways in which it wasn’t really designed to use → but it was never designed for this kind of situation →
Some people argue that that is the beauty of common law → very flexible, can use and adapt it to new situations.
The case had gone to the Court because the Parents opposed separation → they didn’t want to choose to kill one of our daughters so the other one can survive → We believe nature should take its course
If it’s god’s will that they both survive or that they both die → then so be it.
Its not something we think we have a right to interfere in
And it went to the Court → because the Doctors wanted to be sure that they weren’t going to charged with homicide if they conducted this operation.
Because as soon as they did the operation it was inevitable that Mary was going to die → so what that means is
If she was considered to be a human being → then they would have the intention for murder → obviously it wasn’t their desire that she die → but it was virtually certain → she had no capacity for survival independent of her sister’s assistance
Lots of reasons were given by the Court → the HOL of course let the Doctor take the operation
Lord Justice Ward → as well as saying Mary wasn’t a human being → said that basically the doctors were justified in acting in self defence → they were defending Jody who was at threat of fatal harm → because Mary was going to kill her
Brooke used the Defence of Necessity → said that this was an emergency situation → need to do the operation → kill one of the twins to avoid the irreparable evil fo both twins dying.
And one judges arguable misapplied the law said → that the death was not the intention of the doctors because it wasn’t their purpose or desire
But basically anyway the operation was allowed.
When does a person stop being a human being?
Beginning of life
When do you reach the end of your life → when do you stop being a human being → so that you can’t be the victim of a homicide?
In the 1990s death was defined as → the permanent cessation of the heart beat, blood circulation, and breathing
It was defined at common law → We haven’t got a legislative definition of death
So this was kind of heart and lung death → the permanent cessation of the heartbeat blood circulation and breathing
So as soon as those things stopped you were dead
Now we have had medical advances → problems with this end of one’s life course (above)
One can now have ones heart and circulation and breathing maintained mechanically and potentially indefinitely.
So does that mean that you are dead?
So we have had a shift in the definition of death
And increasingly it has come to be defined as the irreversible cessation of the functions of the entire brain
Including the brain stem → so that is brain death
Brain stem → is the part of your brain its at the back of your brain → some people call it the lizard part of the brain → its a really old part of the brain → and it does your most basic and primitive functions → the ones that you don’t even have to think about
Like breathing and blinking → you don’t make the decision to blink or breathe → but you can override it by making decisions about how you are going to breathe’
And once the brain stem goes in the absence of medical intervention → there will be an irreversible loss → of heart beat and breathing →
So the concept of brain death is more recent and it comes out of a Harvard Brain Death Committee’s report in 1968.
The idea that someone with no brain stem function is really a ventilated corpse → and you do not have to prolong life at all costs.
Auckland Area Health Board v AG [1993] 1 NZLR 235:
•Thomas J: “In some circumstances notwithstanding that this person will continue to display the outward manifestations of “life,” that is, a heartbeat and breathing, he or she is not being kept alive in any acceptable sense. The comment has been made that in such a case the ventilator is ‘merely ventilating a corpse.’”
Decision from New Zealand
Auckland Area Health Board v Attorney General in 1993 → decided by Sir Edmund Thomas → Justice Thomas
And he said → in some circumstances notwithstanding that a person will continue to display the outward manifestations of life
That is a heartbeat and breathing
He or she is not being kept alive in any acceptable sense.
The common has been made that in such a case that the ventilator is merely ventilating a corpse
So he is making that point → you can be kept alive on a ventilator that’s doing your breathing for you → that doesn’t mean that you’re not dead.
Harvard Brain Death Committee 1968:
Harvard brain death Committee → indication of where your brain stem is – connected to brain
But still people can have their brain stem functioning and be kept alive for a very long period of time
Even though there is really no chance of that person ever again being themselves → ever coming to consciousness.
Case of Woman named Shiavo → she was kept alive for a very long period of time → can see from the scans of her brain that her brain has kind of dissolved into a watery mass
No hope of this person coming back → but they still might be breathing → and their circulation might still be going → you have to do more to keep that person alive → have to remove bodily waste → have to feed and hydrate them
But a person can be kept alive indefinitely in that kind of state as well →
So one of the issues raised in Auckland Area Health Board v AG → by Justice Thomas → is the possibility that we might have to revise the definition of what death is again
But he just raised the question and he didn’t answer it in that case.
Auckland Area Health Board v AG:
•Thomas J said that although he was deciding the case on the basis that the patient was not legally dead and therefore he needed to look at whether the doctors had a duty to continue life support: “I do so in the conviction that Mr L deserves the description of ‘living dead’ as much as if he were brain stem dead.”
Auckland Area Health Board → NZ case discussing this line between life and death
The person involved had suffered from guillain-Barre syndrome → which is a disease that destroys the connectivity of the nerves between the brain and the body
And ultimately makes the brain unable to communicate with the body
So the patient becomes unable to move or communicate entirely and permanently disengage from the body in a kind of living death.
In this particular case → there was absolutely no chance of recovery
And the patient had existed in that space for 12 months on life support → once life support was withdrawn
Death would be quick and painless → because even though their brain was still functioning → including probably the brain stem → it couldn’t communicate with the rest of the body → so it effectively might as well not have been functioning
And the question was whether the doctors could withdraw life support? → or whether that would be homicide.
And Justice Thomas commented → That he was deciding on the case on the basis that the patient wasn’t legally dead
And so the legal issue was → Because if the doctors withdraw life support → they were no longer doing something → so it was an omission
And the question was → did they have a legal obligation to provide child support?
So it was an omissions issue in his mind
If they had a legal obligation to provide life support then obviously withdrawing it would be an omission and would cause death.
But he went on to say that → even though this person’s brain stem was still functioning → he said that Mr L → the person concerned → deserves the description of living dead as much as if he were brain stem dead.
And quoting from the case → Indeed a less then thorough examination might well lead to the conclusion that he is brain stem dead but that is not the case,
although his upper brain is damaged it’s alive → but the nerve complex which connects his brain to his body is totally destroyed and cannot be regenerated
Spontaneous breathing and heartbeat are irreversibly lost → as if he were brain stem dead →
breathing and heart beat → the outward manifestations of life are also mechanically induced —> the difference between these two cases is a matter of medical description
But both descriptions are perhaps equally apt to describe the living dead
And so basically one of the things he did was he left open the question → in his judgement as to whether we might need to revisit the definition of death at some point
Is the accused a Human Being?
•Section 158 “the killing of a human being by another…”
•Murray Wright Ltd [1970] NZLR 476
One of the things we also have to establish is → Whether the accused is a human being
And this is really unfortunate outcome of section 158 → which defines homicide as the killing of a human being by another.
If they used the word ‘person’ → companies could be guilty
Because companies in law → are legal persons
They are constituted in law as people even they don’t exist → they can own property as though they exist → they can act through their agents and employees as though they exist
But they are not human beings → and there is no compelling reason in policy or principle why companies shouldnt be able to guilty of murder or manslaughter
And it was probably whoever drafted this provision was clumsy or unimaginative → May be the unintended consequence of clumsy drafting
But unfortunately in Murray WRight Ltd → The Court said we have to apply the provision and companies are not human beings → so they can’t be the primary offender in a homicide case → because they can’t commit a homicide
One of the things that remain unclear → is whether companies can be liable as secondary parties →
You can do a crime by doing it yourself → or you can help someone else to do it → can aid abet or assist someone → helping or encouraging them to do it
And there is a more complex doctrine of joint liability → but it’s quite possible → it’s not decided in the case law whether you could be liable as long as you have a human being who is the primary offender
Whether a company could be a secondary offender
And you might have to find one of your employees committed the homicide and the company that they were acting on behalf of assisted them in some way
In Murray Wright Ltd → President North → expressed the view that a company could be a party to a manslaughter under s66 of The Crimes Act
One of the problems with the company being a party to a murder is that there is a statutory presumption of life imprisonment
That is awkward in relation to a company → Because they very famously have no soul to damn and no body to kick → how do you imprison a company they don’t exist?
That could be an argument against even being able to be a secondary party to murder.
If there is a statutory presumption of life imprisonment → that presumption of life imprisonment can be overturned if this would be manifestly unjust given the circumstances of the offender
But the issue for companies is not one of justice it is one of impossibility .
Its not possible because they don’t have a body to incarcerate →
these are open questions in our law
Has the accused caused the victims death?
•
•The answer to this question depends on the application of the law of causation (covered earlier in the course).
To be guilty of a homicide → the defendant has to have caused death
How do we determine that? → You just import all of your law on causation
And if you remember → the main test you will be using is the substantive and operative cause test
So the question is you will be looking at the way the victim died → And you are determining whether the defendant’s action or omission was still playing a role → was it still operative → and that role was either significant or not insignificant → depending on what test the Court applies
In relation to omissions you will remember that test has been modified → because we can not know if a person did what they didn’t → how the world would be altered
But the question is → whether it can be established that had they done what they should have done → the victim would have lived or would probably have lived
Very high standard for omissions
And in relation to cases where the victim freaks out and kills themselves → there is an additional test which is whether their actions were reasonably foreseeable to someone in the defendant’s shoes
So those are the tests for causation.
The year and a day rule:
•Section 162(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.
•Repealed 12 March 2019 – only applies to homicides that occurred prior. This is because criminal statutes generally do not apply retrospectively.
The year and a day rule was repealed on the 12th of March 2019 → So it only applies to homicides that occurred prior to that point in time
Because criminal statutes do not apply retrospectively → and in fact unless the legislature overrides that principle
So there are cases where the legislature has enacted criminal offences and said that they apply retrospectively → and they have been allowed to do that.
But if they just enact law → the assumption is that law applies for the now and the future → it doesn’t apply to the past
And in fact → it’s a fundamental right in the BOR → not to be subject to retrospective legislation.
Section 162 (1) → which no longer exists → says that no one is criminally responsible for the killing of another unless the death takes palce within a year and a day after the cause of the death.
This rule comes from an older period of time where science wasn’t so advanced and just an arbitrary cut off point → after which we have kind of said → we really cant establish that you definitely did cause death →
But with advances in science → we defintely can establish that → if you give someone HIV and then they die of the virus – its pretty apparent that you have caused death
But the rule has evolved in the ancient common law → where science wasn’t so advanced → it was just thought there comes a period in time where it is just too uncertain to say whether or not the defendant has played any role in the death.
It has been repealed in most comparable jurisdictions and we have now repealed it.
Is it culpable homicide?
Section 160(2) “…the killing of any person-
(a) By an unlawful act; or
(b) By an omission….; 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”
So after you ask the questions to determine whether or not you have a homicide → the next question you need to ask is whether the homicide is culpable
The answer for that depends on turning to s160(2) → which says that a culpable homicide is the killing of any person by
(a) – an unlawful act or
(b) → by an omission or
© → 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
So there is basically five ways that something could be a culpable homicide
The last way (e) is very unusual → hard to find cases that have relied on (e)
In most instances you will be talking about (a) or (b) → unless you are talking about one of the unusual fright or self preservation cases where the defendant frighten the victim
And they do something to try and protect themselves or get away from the defendant and accidentally kill themsleves → that would be (d)
But in most cases you will be talking about (a) or (b)
By an unlawful act: Must be…
•Unlawful (s 160(2)(a))
•Dangerous (common law)
Unlawful act → Subsection a
Note → the act has to be unlawful → that is set out in section 160 (2) (a)
But the act also has to be dangerous → The requirement that the act be dangerous is a common law addition to the legislature
So it’s a gloss on the legislature at common law → effectively what dangerously does is it inserts negligence in as a mens rea standard →
We may have said → murder requires intentional recklessness as to death
Manslaughter → requires negligence
And dangerousness provides that negligence
Unlawful Act: Section 2:
•“a breach of any Act, regulation, rule or bylaw”
•Not confined to a crime (Fencing of Swimming Pools Act 1987, R v Turton HC Hamilton, T45/89, 31 October 1989; Rotorua District Council Law Waters Control Bylaw 1979 and Collision Regulations, R v Myatt [1991] 1 NZLR 674)
•Unlikely to include a tort
•A complete defence will mean that there is no longer an unlawful act (eg self-defence)
What is an unlawful act?
An unlawful act is defined in s2 → to mean a breach of any act, regulation, rule or bylaw
That is a very broad definition and unlike the common law → it includes but is not confined to criminal offences
So an unlawful act could be something which isn’t a criminal offence → including negligent and strict liability offences.
Examples of unlawful acts have been → breaches of the Fencing Swimming Pools Act, → supposed to have your swimming pool fully fenced off → a breach of that could be unlawful act that causes death
In Myatt → the unlawful acts were breaches of the Rotorua District Lake Waters Bylaw 1979 → so the defendant in that case was passing people in a speedboat
And he was on a lake → and was passing people in ways that were too fast or dangerous → and breached the bylaws which specify how you were meant to conduct your boat → in Rotorua on the lake
On Gedson → it was a breach of the Civil Aviation regulations → So these are not Crimes
They are basically breaches of a regulation or a bylaw or a rule at law → however you will see that it has to be a breach of some kind of legislative instrument
So probably a breach of a Tort wouldn’t be enough → because torts are common law creatures → found in the common law → and unlawful act is not defined to include common law rules
It’s not aptly described as a breach of some legislative instrument (torts)
Note → if you have an unlawful act → what would have otherwise been an unlawful act → lets imagine an assault →
And you have a defence available to you → that is a complete defence in respect of that unlawful act → then it is no longer an unlawful act.
For example i assault someone and i kill them → but I have the defence of self-defence under section 48 of the Crimes Act → that’s a complete defence
I have no longer committed an assault → i have a defence to the charges of assault
What that means is I knock out my homicide charges as well
Because even though I might have caused death → I did not cause death by an unlawful act.
Section 150A:
(1) This section applies in respect of—
(b) an unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.
Note section 150A → provides that this section applies in respect of (b) an unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence
Basically why we have this is → you can have an unlawful act which is based on negligence → so say your unlawful act is dangerous driving
Or negligent driving →
and you will remember on the authority of Yogasakkran if the negligence offence doesn’t specify a criminal standard of liability → it could be interpreted to mean just ordinary old civil liability
So you could have this really awkward position → which was a position that arose in the case of Powell → which is why we have this provision here
Where if you have one act which could be characterised as an unlawful act or it could it be characterised as an omission under section 156 → having the charge of a dangerous thing a motor car and not exercising reasonable care
So basically if the unlawful act doesn’t require criminal negligence but the omission does → Then the prosecution is in this neat position
Where they can decide not to have to prove the criminal standard of proof by just how they structure their charges
If they go down one path → they only have to prove civil negligence → if they go down the other path they have to prove criminal negligence
And that was the situation that arose in Powell →
Powell was a case where the accused was charged with manslaughter resulting from an unlawful act → rather than manslaughter based on an omission
And in fact the unlawful act → was operating a vehicle dangerously and carelessly
And so the Crown could have charged under the omission provision → but it would have had to have proven criminal negligence
And The Crown was arguing → that if they charge an unlawful act → the Crown was perfectly within its rights only to establish civil negligence
Because of this line of authority that the legislature only specified falling short of the standards of reasonable care and that was all that was required.
The Court of Appeal said → this would be a very anomalous result if different standards of negligence applied depending on how the Crown charged the crime.
They said it is quite artificial to distinguish between acts and omissions in this context → the legislature can not have intended that different standards would apply.
And so they interpreted 150A as though it applied to both
And then the legislature very kindly obliged by enacting this provision.
Which basically codified Powell into the legislation.
Note → that if you are relying on more than one act → to prove a major departure from the standards of care expected of a reasonable person
Then those acts together must be shown to satisfy the test for causation
In other words you cannot take an act which doesn’t death → but amounts to gross negligence (so satisfies s150A) → and combine it with an act which is not negligent but does cause death and argue death by an unlawful act.
You have to prove causation in respect of whatever you are relying on as an unlawful act → and that if it involves negligence it has to be gross negligence
So you can’t for example say → there is dangerous driving and there driving with excess blood alcohol → Im just going to combine those two and say dangerous driving with excess blood alcohol is a criminal departure from the standard of care.
You then have to prove that both of those things played a causal role in death
You can’t rely on one → add in the other to take it up to criminal negligence and then just rely for causation on one of those actions
Dangerous:
•The unlawful act must be an inherently dangerous act: An act that a reasonable man would know was fraught with risk of serious harm to some person whether or not the accused was aware of this: R v Fleeting (No 1) [1977] 1 NZLR 343 (SC)
We said that as well as being unlawful → the act had to be dangerous
And following English authority this is what the New Zealand Courts have said →
And whether its dangerous its → objectively dangerous → we have a number of tests laid down in the case law
In R v Fleeting it was said that → the unlawful act must be an inherently dangerous act → meaning that it is an act that a reasonable person would know was fraught with the risk of serious harm to some person.
And Fleeting said → this was an objective test → it doesn’t depend on demonstrating that the defendant knew that there was harm to some person.
That a reasonable person must know that the act was fraught with the risk of serious harm to some person.
So serious harm → to anybody
In R v Myatt → The Court applied a slightly different test → said that the particular unlawful act had to be likely to do harm → to the deceased or some class of persons of whom he was one
So they not requiring serious harm → they are just requiring the likelihood of harm
But they are saying you have to predict that that harm is going to be caused to a certain class of people → and the victim has to be one of those people.
R v Lee [2006] 3 NZLR 42:
•“Likely to do at least some (more than trivial) harm”
In the case of Lee → the Court was even more expansive
They said that the threshold test was whether the act was likely to do at least some → more than trivial harm
Now we are not talking about serious harm → and it just seems more than trivial harm to anyone
So basically we have gone down this path → that if the reasonable person foresees harm of some kind as long as it’s not totally trivial to someone → then its an objectively dangerous act.
That is very different from Australia → which has required that the reasonable person has to foresee that the act could cause death, or serious harm → so in other words a high level of harm before its dangerous → before you can be guilty of homicide
We seem to just require → foresight of actual bodily harm to anyone.
So what that does is makes our manslaughter by an unlawful act in NZ → really expansive → just have to foresee some kind of harm that is not totally trivial to someone → and then you are talking about an objectively dangerous act.
An objective test:
Dangerousness has to be assessed;
“within the framework of the circumstances as they appeared to the defendant at the time. So here the reasonable person must be placed in the shoes of the accused facing the situation as it then appeared to the accused.” R v Gedson HC Rotorua T51-94, 4 December 1997
And we have said → its not about what the defendant foresees → what they foresee is irrelevant
It’s actually about what the reasonable person would foresee → its an objective test.
We are assessing dangerous according to R v Gedson → in the circumstances as they appear to the defendant at the time → So we always place the reasonable person in defendant’s circumstances
So we have to determine → what did the defendant know about their circumstances.
And then we put the reasonable person in those circumstances.
So we’re drawing a distinction here between what the defendant is aware of → with regard to their circumstances
Because it wouldn’t be fair to judge them according to circumstances that they don’t even know exist → we are judging them for falling short of what the reasonable person would have done.
But they don’t get the benefit of any opinion that they have drawn about their circumstances.
So it’s what they know about their circumstances but their opinions are irrelevant.
If the reasonable person wouldn’t have drawn those opinions from these circumstances.
What did this mean in R v Gedson?
•If the defendant thought that the blades he was installing on his helicopter had come from the organised manufacturer and were genuine and approved, then there would be no basis for a reasonable person in his shoes to think that it was dangerous to install them.
•Knowledge is confined to facts – the reasonable person will not necessarily draw the same opinions from the facts as the accused (ie that its safe to proceed).
Gedson was the case where the defendant was installing helicopter blades →
and the question was → was he aware that the helicopter blades he was installing had not come from the authorised manufacturer → The manufacturer hadn’t authorised them as appropriate blades to put on this helicopter.
So did he know that? → because if he didn’t know that → then those were not part of the circumstances that we would put the reasonable person in.
However if he knew that fact → his opinion that these unauthorised blades were just as good as the authorised ones is disregarded.
So we are going to put the reasonable person in the shoes of someone who knows the blades are unauthorised →
And then ask the jury → however that reasonable person would have behaved? And that is the standard.
Would that reasonable person have foreseen the risk of harm to someone → is the question.
One of the things we do is → we assess the act in context → so not questioning the provision that the defendant breached was dangerous
So for example in Myatt → the regulations themselves could or would have been concerned with public safety .
The Court said → what we are doing is looking at the specific acts of the defendant in judging whether those were objectively dangerous → not whether the law that they breached was concerned with public safety.
We are also examining the action in its context → not in the abstract → Fleeting made that point →
was a case where a person pushed somebody else on to queen street → And they were immediately run over by a passing car.
So we are not assessing whether the act of pushing someone is dangerous → we are assessing whether the act of pushing someone onto Queens Street at that point in time is dangerous → we don’t take the act out of context.
However we don’t use the context to lose sight of what the act is we are talking about.
So in Leautiua → Justice Katz in the HC said → that supplying drugs is an unlawful act but it is not inherently dangerous
The risk of physical harm to the victim → not because they had the drugs in their possession but because they chose to swallow them
So Justice Katz said → the test is not one of foreseeability of potential harm → if someone ingests the drugs in the quantity supplied → its a question of whether you supply the drugs → is that dangerous?
On the facts of the particular case → de facto Son in law supplied drugs to his mother in law who swallowed them all trying to smuggle them into the country and they burst inside her.
Justice Katz → if she had put those drugs into her luggage and chosen to smuggle them in that way instead of ingesting them there would be no risk of physical harm
So we are not using the context to lose sight of the act it is → that we are relying on as an unlawful act.
Whatever it is that is the unlawful act → also has to cause death → another way of saying it
And we have talked about the act of a third party → breaking the chian of causation under the doctrine of novus actus interveniens.
This is a negligence standard:
•Objective mens rea standards (negligence): measure the accused by a standard external to themselves. In this instance the hypothetical reasonable person.
•Subjective mens rea standards (knowledge, intention, recklessness): it must be proven that the accused had a particular state of mind.
•Debate around whether the reasonable person is given unusual physical characteristics of the accused (eg impaired sight or hearing).
We don’t have to prove that the defendant had any particular state of mind.
And some of the case law developments in other jurisdictions → where courts have started modifying the reasonable person test to accommodate certain things about the defendant which arent the defendants fault.
That is NOT the case in NZ → We have been really clear about not modifying the reasonable person test.
But there are arguments for modifying that test according to age → for example holding a 16 year old or 18 year old to the standard of a mature person → because their brain capacity means they will be thinking differently
But this is not the case in NZ
For example no reasonable 18 year old or 16 year old in NZ.
The Unlawful and Dangerous Act must cause death:
•R v Hawkins HC Napier T18-00, 21 February 2001: Accused suffered epilepsy. She had a fit whilst driving and collided with someone who was killed.
•The Crown argued that her unlawful act of driving without a license caused death. Did the court accept this?
The Case of Hawkins → case where the accused had suffered from epilepsy and had a fit while she was driving
And collided with somebody who was killed
And the unlawful act that the crown had relied on → was her unlawful act of driving → because she didnt have a license →
And Justice Goddard didn’t accept that.
Goddard J:
•The unlawful act of driving without a license was not dangerous and did not cause death.
•Her decision to drive whilst she had such a medical condition was a breach of her duty under section 156. The Crown should have charged her under s 160(2)(b).
Goddard said → it wasn’t the fact that she was driving without a licence that caused the victims death → it was the fact that she was driving with the medical condition of epilepsy that caused death
The unlawful act had nothing to do with what caused death.
Important decision → if somebody has a driving offence and they are unlicensed its not assumed that the fact that the mere fact that they are unlicensed causes anything by way of consequences → they could be a perfectly competent driver without a licence.
What should have been charged in Hawkins → was an omission → under section 156 → failing to use reasonable care when you have in charge a dangerous thing → ie a car → and you have driven it whilst knowing that you could have had a fit of epilepsy
That was what should have been argued and if that was the case you would have probably had a conviction in that decision.
An Omission: Section 160(2) (b):
•Refer to the law on omissions (covered earlier in the course).
Under section 160 (2) (b) → an omission can cause death
And that will be a culpable homicide
So this is where all of the law on omissions can be imported → remember that we looked at statutory criminal duties found in sections 151 to 157 of the Crimes Act
Some of them based on having a special relationship with the victim → some of them based on undertaking a dangerous activity or having a dangerous thing → and then common law duty of having some kind of relationship with the harm
The last one which we know exists but havent had to apply in NZ → because our statutory duties have been sufficient.
In addition to these general criminal statutory duties and the common law duties →
manslaughter by omission can be based on a duty created by other legislative instruments
So don’t just assume its an omission under those provisions in the Crimes Act.
For example in R v Paenga → the Judge considered that regulation 17 (1) of the Traffic Regulations 1976 → which prohibited allowing a person to ride in a vehicle in a manner or position that may be liable to cause injury to that person
So there is an obligation not to let anyone ride in your car in a way which might cause injury to them → that created a legal duty on a driver → not to drive the vehicle if someone was riding on it in that way.
Obligation not to drive the car if someone is on its roof or hanging off it in some dangerous way → so can base a manslaughter conviction on your failure as a driver to satisfy that duty.
R v Fenton [2003] 3 NZLR 439:
“It is not permissible for the Crown to prove ordinary negligence by reference to causative acts and omissions and then seek to adduce evidence of further blameworthy conduct, not causative of the fatality, in order to show that there has been a major departure from the ordinary standard of care… The major departure must itself be proved on the basis of the acts or omissions which singly or together caused the death.”
Same again with an unlawful act → if you are relying on an omission then you have to prove that that omission amounted to gross, wicked or criminal negligence
And then you have to prove that whatever was gross, criminal, or wicked negligence → caused death
So you cannot combine a whole lot of things together to try and show criminal negligence → unless those things combined together are sufficient to cause death
This was said in the case of Fenton → Fenton was a young man who was driving without a licence
Driving a car which was unwarranted → Car had problems with it → had people sitting on it in stupid ways
And so when you looked at everything he had done → obviously you could prove criminal negligence all combined it was a horrible picture.
But the Court said → Whatever the Crown was relying on as causing death → that had to be the thing that was criminally negligent
You couldn’t put all those things together and say → clearly a major departure from the standard of care
Even though only one of those things resulted in death
Quote from the Court Above → not permissible for the Crown to prove ordinary negligence by reference to causative acts and omissions and then seek to ….
Another case laying down this principle was the Queen v R → that was case where a mother had a conviction for manslaughter overturned by the CA.
She had been convicted of manslaughter on the basis of a major departure from the standard of care expected of a reasonable mother who was breastfeeding.
She was a mother with a methadeine addiction → and she had gotten pregnant → she had a serious drug addiciton → she wanted baby to be ok → so working with plunket → doctors put her on methadone
To manage her addiction issues because it was considered to be less harmful to the baby. → they put you on methadone and they start reducing the methadone because its not a fun drug
She was mosy likely a working class mum → and didnt have much by way of family support → doing it tough had a newborn → breastfeeding and she basically was doing night after night doing baby stuff.
She went through this night she had methadone in her system → she tried to take sleeping pill to get to sleep → it didnt work → she took a couple of shots of vodka
And unbeknownst to her she was coming down with pneumonia → she was awake all night → near the mornign she was waiting for the Plunkett nurse → she started breastfeeding her baby and she nodded of and smothered her baby
And he was charged with manslaughter of that baby → she was convicted
And there was an appeal → the CA said no this is not good enough → some things she has done are perfectly ok
CA said → cannot blame her for coming down with pneumonia, for being sleep deprived her, or being on methadone (medical professionals put her on that)
So you have to ask whether shots of vodka and sleeping pills were a major departure from the standard of care
But more than that if they are → then you have to prove that they were the things that caused her baby’s death
Which is going to be difficult on the facts.
Second lecture start:
Test → likely follow the format of previous tests → problem question
Potentially covering all legal doctrine we have covered so far → not sentencing
Every offence or defence is a recipe of requirements → and that is how you should structure your study
If this is the offence or defence that arises → what do you need to prove → what are the actus reus components what are the mens rea components.
Identify the offence or the defence → setting out the recipe then using that recipe on the facts
Each requirement will have a further explanation in either the legislation or the case law → there may be some parts of the recipe that wont bother to discuss on the facts
For example manslaughter → culpable homicide → manslaughter is the residual categories of homicides that are not murder → culpable homicide where you cant prove the mens rea for murder is manslaughter
In most cases of manslaughter the recipe is that the accused and the victim are human beings → the accused does either an unlawful act or an omission → and that unlawful act or omission causes the victims death
In most instances you won’t be wasting a huge amount of effort deciding whether the accused or the victim is a human being → in most cases you won’t but might ahve a problem where that is an issue.
Basically say → deal with requirements two and three → because they require more discussion on the facts → because requirement 1 is non contentious and clearly satisfied (obvious)
Recipes → offences always have to be found in a piece of legislation → the requirements will be set out either in that legislation or the common law or the combination of the two
You may have alternative requirements like in the workshop case → can either be an unlawful act looking for or an omission → and particularly which of those two you may be able to satisfy the causation test to for the victims death.
Euthanasia:
Talking about culpable homicide by an omission → where omission causes the death of the victim
Sidetrack to talk about euthanasia → omissions did play a significant role for a while in NZ for delineating between what were lawful and unlawful euthanasia situations
That is no longer the case → but the history is interesting.
Lucretia Seales:
Sections 179 (assisted suicide) and 63 (consent no defence to homicide) impinge upon her rights under the Bill of Rights Act 1990:
Section 8: Right to life
Section 9: Right not to be subject to torture or cruel… treatment or punishment
Case Lucretia seales v Attorney general → Famous case
The woman who took the case was a lawyer and she was dying of a brain tumour → it was inoperable.
Because she was a lawyer → she took a case → only got the High Court → Seeking a declaration that if a doctor helped her to die when she really wanted to go → when pain suffering became intolerable
That that doctor would not be guilty of murder or manslaughter → and if the doctor gave Ms Seales the necessary drugs to kill herself → that that doctor would not be guilty of assisting a suicide under s179 of the Crimes Act
So basically seeking a declaration that the doctor would not be guilty of a criminal offence
And the declarations were only sought in respect of particular circumstances → Where a competent adult who has a grievous and terminable illness that causes enduring suffering that is intolerable to them in the circumstances of their illness
Consents to death
Not generally but just in circumstances where you have a terminal illness → that is likely to cause you at some point intolerable suffering → and you want to die
This went to the High Court → and ultimately rejected
Many arguments run → key people in legal profession in public law came to run the case
Both from Ms seales and the Crowns perspective
One argument was that → a rational , competntent and permanently ill patient who ends their life by taking a lethal drug is not suicide → one argument → that was rejected by the Court
And alternatively she sought declarations that the offence provisions of the Crimes Act in particular the law on → saying that you cant consent to your own death in s63
And the offence of assisted suicide under section 179 → were not consistent with → her right to life under s8 NZBORA → and right not to be subject to torture or cruel treatment or punishment under section 9 NZBORA
This was an argument that had been successful in Carter v Canada attorney General (Case in Canada) →
IN NZ → Court said she was right in relation to s8 NZBORA → these provisions did breach her right to life → Seems odd that right to die was breach of right to life
But the argumet was → if she wasn’t allowed to die when pain became intolerable → She would be incentivised to take these to end her life sooner than she really wanted to → when she had the capacity
In that sense it was a breach of her right to life → shed be forced to take her life earlier then she wanted to rather than wait till the pain became intolerable at that point she is risking the doctors → and anyone that helps her.
The High Court said → yes you are right → but i dont have the jurisdiction unlike in Canada
Canada has different constitutional structure → Courts will declare legislation invalid → and give legislature time to put socks up and enact new legisaltion
New Zealand Courts dont do that → Although they have become more proactive into reading things into legislation so they are not inconsistent with the BORA
High Court Judge here said → i dont have the power in my constituinal structure to declare legislation invalid
And in any case → the state can infringe any rights in section 8 as long as they do so on grounds established by law and consistent with the principles of fundamental justice
None of these rights are inviolable as long as the state are principled in how they incur upon them.
And the judge went on to find → that the laws prohibiting homicide and assisting suicide werent arbitrary → they were enacted to protect human life → they werent overbroad because they were directed at protecting all human life → and they were proportionate to the fair objective of protecting all human life
But He did go on to find that her right not to subject to torture or cruel treatment or punishment were not infringed → this is because her illness was cruel and painful → but not the legal position
End of Life Choice Act 2019:
•Cames into effect in November 2021
•Permanent resident or citizen
•18 or older
•Suffers from a terminal illness that is likely to end their life within 6 months
•Is in an advanced state of irreversible decline in physical capacity
•Experiences unbearable suffering that cannot be relieved in a manner that they consider tolerable
•Is competent to make an informed decision
•Principle of “double effect”
Then there was a referendum in NZ → and ended up with the End of Life choice Act in 2019 →
Which came into effect in November 2021 → and does provide a scheme for lawful euthanasia in NZ.
Whilst doctors are not allowed to do actions that casue peoples death
There is this thing called principle of double effect → What this means is they cant give drugs that cause them to die
They can give them drugs designed to alleviate their suffering → even if those drugs have the known but not desired consequence of accelerating death
But causing death is accelerating → so even if accelerating by 20 minutes you have caused death.
Doctors can give medical treatment that hastens death → provided that the treatment is given for a lawful medical purpose
Giving pain relief for example → even though that would amount to a lethal dose over time
Other people cant do that → has to be medical professionals that do that.
But there were a number of cases → and these cases are still current → There are a number of cases which said
While doctors cant do something to hasten death → they can do nothing and hasten death → and that is not a manslaughter
For example they can switch of life support → because that is not doing something → that is doing nothing
And if they don’t have an obligation to do something → it doesn’t register as an omission for the purposes of the criminal law
Its a failure to act but not a breach of any obligation to act.
Airedale NHS Trust v Bland [1993] AC 789:
•Do doctors have a duty to provide life support to a patient in a permanent vegetative state?
•In New Zealand the issue arises under s 151
•The doctors were not acting in withdrawing life support: they were failing to act.
•Did they have a legal duty to provide life support? A doctor’s duty is to act in their patient’s best interests. It was not in Anthony Bland’s best interests to continue treatment.
The leading case on this is Airedale NHS trust v Bland
Case involving a young man named Anthony Bland
Very tragically in the fatal crush at the hillsborough football stadium on april 1989 →
Stampede and crowd couldn’t get out → so all of the people who are at the front of the stampede were pressed against the fence
His lunges were crushed and perforated → and he suffered prolonged oxygen deprivation
What happened is his cerebral cortex had dissolved into a watery mass → in consequence of not getting enough oxygen
No hope of recovery → permanent vegetative state
So Anthony Bland the person → was permanently gone
And he was kept alive for four years until the HOL handed down a decision → on the legality of withdrawing artificial hydration
His brain stem was still functioning → Was able to breathe and do all things dont need to be conscious to do → but he couldnt eat or drink water → and so being hydrated and fed intravenously → and his bodily waste were being removed
And that went on for four years → and so they went up all the way to the HOL in England to try and find out → could the Doctors withdraw life support
His family supported it → his dad said that they hadnt discussed it but his son wouldnt want to be in a state like that
The thing is he wasn’t legally dead → so as soon as you withdrew life support you were going to cause death
And that is because his brain stem was still functioning → he was still breathing and his blood was still circulating and so on
Definition of death → brain stem function. Permanent cessation of breathing and heartbeat and blood flow.
The question is whether the Doctors have a duty to provide life support to someone in this permanent vegetative state?
In New Zealand → the issue would arise under s151 → which creates obligation for caregiver of a vulnerable adult → who can’t withdraw themselves from your care → and cant provide themselves with neceassaries
The question was → whether the doctors as caregivers → had the obligation to provide Anthony Bland with life support
The House of Lords said → the doctors had a legal duty to act in the patients best interests
But in this case it wasn’t in Anthony Blands best interest to continue this treatment
The Doctors weren’t acting and switching of the machine → they were just failing to act → they were just not acting to prevent him from dying forma previous cause
They owed a duty to act in the patients best interests → it was not in the patient’s best interests
Lord Mustel → said Bland did not have any best interests of an kind, no interest in being kept alive
Lord Ketih said → when a person has no cognitive capacity whatsoever and no prospect of recover it must be a matter of complete indifference whether he lives or dies
The treatment was an invasive manipulation of his body which he did not consent to and which conferred no benefit to him
Lord Goff said → the treatment was futile and served no therapeutic purpose of any kind’
Lord mustel → admitted that this was a hypocritical decision → only made acceptable in what he described as → the morally and intellectually dubious distinction between an act and an omission
And it resulted in the cruel outcome that we could let someone die over a period of weeks for lack of food → thereby putting his family through a painful ordeal →
But it wasn’t lawful to produce his immediate death by a painless and lethal injection → but he said there is nothing we can do about that that is just the law as it stands today.
Auckland Area Health Board v AG:
“…must begin with a bona fide decision on the part of the attending doctors as to what, in their judgement, is in the best interests of the patient. Equally, it must encompass the prevailing medical standards, practices, procedures and traditions which command general approval within the medical profession. All relevant tests would need to be carried out. … specialist opinions and agreement will no doubt be required and extended consultation with other consultants is likely to be appropriate. Consultation with the medical profession’s recognised ethical body is also critical. It must approve the doctors’ decision. Finally, the patient’s family or guardian must be fully informed and freely concur in what is proposed.”
The issue of withdrawing life support NZ arises in this case
This man was suffering from Gullian-barre syndrome
This mans brain stem was still functioning → but the nerves between your brain and body deteriorate → So no communication between brain and rest of body due to this syndrome
Even though brain still functioning could not communicate with body
His brain stem was was still functioning → so still alive legally
But he had to have an artificial breathing machine to breathe → because no communication between brain and body
And the minute the machinery turned off → he would die quickly and fairly painlessly
His brain was in his body like a living coffin
Been in that state for quite a while?
The question again came under section 151 → was this ventilation → artificial breathing a necessity of life they were obliged to provide to him under section 151?
And the Court said → if the patient was → it was a question of fact → if this ventilation was required to cure or prevent or alleviate a disease that was endangering the life of a patient → then it might be a necessary of life
But if the patient was only surviving by mechanical means and beyond recovery → then not properly construed as a necessity of life
It’s only deferring certain death → once the patient has passed beyong the point of life → Justice Ted Thomas
Thomas → On these facts no it is not a necessary of life.
Then he went on to say that if he was wrong → and there was a duty to provide ventilation → that it was a necessary of life
There was a lawful excuse → for not performing their duty → on the part of the doctors
And he set out the sorts of considerations that would go into providing a lawful excuse
He said it has to be a decision in accordance with good medical practice → which must begin with a bona fide decision on the part of the attending doctors →
as to what in their judgement is in the best interests of the patient.
It must encompass the prevailing medical standards → practices and procuedures and traditions that command general approval within the medical profession
All relevant tests need to be carried out…
Causing the victim to do an act which causes his death (160(2)(D)):
•By threats or fear of violence or by deception
Fright and self preservation cases → pop up in causation
These cases hold that the accused has caused the victims death → if the victim acts of self preservation which were the immediate cause of the death → were reasonably foreseeable to somebody in the accused shoes
Doing what the accused is doing to the victim → and if the law on Causation is established in those cases →
then we automatically have a culpable homicide under section 160(2) (d) →
you may have an overlap with 160 (2) (a) → because you might if you have a threatening act have an assault
So could have an unlawful act causing death as well as going down the section 160 (2) (d) path → which doesn’t require proof that the threatening act was necessarily an assault
So you could have the opportunity to engage in multiple analyses.
The case law talked about threatening acts → the victim responding to a threatening act → doing something that immediately causes their death
And that being predictable to someone in the accused shoes → but when you look at (d) it says threats or fear of violence or by deception.
So that basically extends the case law → because not just threatening acts it is also deceiving acts.
No case law on this → dont know how it will play out → but be aware that the legislation is broader than the case law and encompasses actions the victim takes that are caused by the accused deception.
Presumably those acts by the victim also have to be reasonably predictable.
In the fright and self preservation cases the victim is responding to the accused → So no novus actus interveniens
And fright and preservation are designed to limit liability for the accused only towards what you can predict → so not liable because people do stupid things that people would never do in response to your threatening or deceptive behaviour → only liable for things that a reasonable person could have foreseen
If someone does random and unpredictable things how can you be morally accountable → law tries to have moral component
Are morally accountable though if you negligently risk things
Its a form of negligence → fall short of what we would expect of people in our society being careful of other people’s lives.
Wilfully frightening a child or a sick person (160(2)(e)):
Section 160 (2) (e) → dovetails with section 163 → which provides that the accused cannot be liable for influence on the mind alone → except by wilfully frightening a child under 16 or a sick person
Threats of violence that result in the victim doing things that directly cause their death are covered by the fright and self preservation clause
So this is likely to include threats that kill the victim without actions by the victim that directly kill themselves
So things that maybe cause the victim such stress that they develop an illness → in consequence of the stress of example
Only applies to vulnerable victims → sick people and children
Not many cases applying this provision
If you cant fit the case that you are looking at into section 160 (2)
One of the subcategories from (a) to (e)
So you have got a death → but cant fit it into any of those categories
Then basically you have an acquittal → you have a non culpable homicide
And section 160 (4) provides → that a homicide that is not culpable is not an offence and will result in an acquittal.
Depending on whether prosecution of defence → you will be aiming to avoid that or arrive at that outcome
Not culpable homicides includes → accidental killings where the accused wasn’t doing anything unlawful → was not breaching any duties → and a reasonable person would not have realised that someone would be harmed in relation to their actions even if unlawful act.
And it will include killings with no unlawful act → because the accused has a complete defence to whatever it is that made their action unlawful.
For example an assault that causes death → there is a complete defence → if the accused is able to raise self defence → that is a complete defence to the offence of assault → meaning that the act which caused death was a lawful act.
So you knocked out the unlawful act component of the culpable homicide.
There are various other provisions allowing people to use force → which might justify an unlawful act
For example → necessary force to overcome resistance to a justified arrest → section 39 → providing you are not a constable using that force → that the force is not intended or likely to kill or cause GBH
So if using necessary and justified force to overcome resistance to an arrest you are making as a citizen → you do have the option to do it → entitled to use force as long as its not force that you intend or likely to kill or cause serious bodily harm to that person.
Is the culpable homicide murder, manslaughter or infanticide?
•Section 160(3) “Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.”
•Section 171 “Except as provided in section 178 of this Act, culpable homicide not amounting to murder is manslaughter.”
Assume we find a culpable homicide → we then move on to our next question
Is it murder, manslaughter or infanticide?
So once we’ve established a culpable homicide → the question is what type?
Putting aside the special circumstances of infanticide → set out in s178 → a culpable homicide is either murder or manslaughter
And section 171 provides that except as provided in section 178 of this act → so except its an infanticide → culpable homicide not amounting to murder is manslaughter → provision which says manslaughter is residual category of culpable homicides that are not murder.
So basically if you establish a culpable homicide → you prove it’s a manslaughter by checking out to see whether or not it’s a murder → and if it isn’t then it is automatically a manslaughter.
Section 167: Intentional or reckless murder:
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless as to whether death ensues or not:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.”
There are two types of murder → question of whether we can establish a murder once we have proven a culpable homicide?
The most common type is intentional or reckless murder as defined in s 167 → the second type is set out in section 168 → its less common and sometimes referred to as felony murder.
Start with looking at intentional or reckless murder in section 167.
Section 167 provides → that culpable homicide is murder in three cases →
These three cases are really just three mens rea. → just setting out mens rea for murder → if no mens rea then have a manslaughter
(a) if offender means to cause death of the person killed → meaning that death is the accused purpose or desire → or possibly that they know its a virtually certain outcome of their actions
But that is still debatable because some say means to cause → only covers purposive intention, does not cover oblique intention
(b) if offender means to cause the person killed any bodily injury that is known to offender to be likely to cause death and is reckless as to whether death ensues or not
© → the offender for any unlawful object does act that he knows likely to cause death and kills person though he may have desired that his object should be effected without hurting anyone.
Paragraph a → covers intentional murder
Paragraph b and c → dealing with reckless murder
Section 167 © → does not set out a state for murder → that is talking about the concept of transferred malice.
Intentional murder:
•“means to cause death”
•Covers situations where death is the accused’s purpose or desire.
•Includes situations where the accused has knowledge that death is a virtual certainty.
We have looked at question of what amounts to intention
This is where you would insert all of our discussion about what intention means here.
Covers situations where death is the offenders purpose or desire → but intention more generally covers knowledge of a virtual certainty.
It is likely that when you know death is virtual certainty → you will have intention under here → but some people argue that it only covers direct purposive intention.
Reckless Murder:
•Subsection (b)
•means to cause bodily injury
•That the offender knows is likely to cause death
•Subsection (d)
•for any unlawful object does an act
•that he knows to be likely to cause death
There are two types of reckless murder in this provision s167.
And they require slightly different things
Both require recklessness as to death
But the action that you have to be aware you are running the risk of causing death in respect of is slightly different depending on what provision you are going under.
Recklessness as to death → is knowledge of the likelihood → offender personally knows that they are running the likely risk of death.
Subsection (b) → require that the defendant means to cause bodily injury that they know is likely to cause death
And subsection (d) → requires that the defendant does na act for an unlawful object that he knows is likely to cause death
So you have to foresee recklessness to the relevant degree → R v Piri.
R v Piri [1987] 1 NZLR 66 (CA):
•“The rationale of (d) is the need to classify as murder culpable killing by conduct whereby the accused deliberately risks life for his own unlawful ends. If the risk of the death of the victim was truly no more than negligible or remote in the offender’s eyes, the stigma of murder should be withheld. To be distinguished from that however are cases where the risk is so appreciable that to indulge in the conduct is seen by society as the virtual equivalent of intentional killing. Expressions commonly used to indicate the degree of foresight of risk to be proved against the accused are a real risk, a substantial risk, something that might well happen.”
R v Piri → The Court examining the risk that has to be forseen → which is expressly in the provision → a likely death
Said that this means a real and substantial risk that the death could happen → The Court said that NZ cases have held that the words likely and probably don’t require proof that the accused thought the result was more probable then not or more likely than not.
A fine calculation that the odds are against it → can still be awareness of the likelihood of death.
So you don’t have to think its the most likely thing to happen.
The Court said the rationale of (d) is…
If the risk of death of the victim was truly no more than negligible or remote in the offender’s eyes, the stigma of murder should be withheld → remembering that they are most likely to be guilty of manslaughter anyway.
If a problem in the exam → its not just that the accused foresees death →
they have to foresee the level of risk → so if they just think its a remote possibility → they are not reckless as to death.
They have to foresee death as something that is a real risk → or a substantial risk → even if it isn’t the most likely thing to happen.
Case law talking about how you infer subjective intent → you infer it from things the accused has said and done → so very much a factual specific inquiry.
O Brien → accused was held to be aware of the likelihood of the victims death → when 14 years old, drunk and limited intellectual capacity
Decided to hit in the head with a hammer → and the Court said she clearly knew there was a risk
Will go through usual processes of trying to infer whether there is any plausible story that the defendant did not have awareness of a likely risk → because if there is any plausible story
Mens rea is not established and the defendant should be acquitted of murder.
The relationship between s 167 (B) and (D):
•Subsection (b)
•means to cause bodily injury
•that the offender knows is likely to cause death
R v Pira (1991) 7 CRNZ 650 (HC)
•Subsection (d)
•has an unlawful object
•does an act in pursuit of the unlawful object (person dies because of that act)
•knows the act is likely to cause death
R v Cho HC Auckland, 19 Sept 2008
Nexus issues in relation to s167
S167 (b) requires proof of two mens rea elements → intending bodily injury → just means injury which isn’t serious but isn’t totally trivial → so any form of injury that is not totally trivial
And it is the intentional infliction of that injury knowing that you are running the risk of death.
And in R v Pira → The Court held → that the recklessness as to death must be established in relation to the bodily injury that the defendant specifically intended
Although as long as they foresaw a risk of death occurring from the injury that they intentionally inflicted
It doesn’t matter that they didn’t foresee precisely how that death would occur
In R v McEwan → an elderly lady was gagged and assaulted by the accused and died of asphyxiation with her blood and vomit
And he didn’t necessarily forsee that particular way of her dying but it didn’t matter → he had assaulted her → and it was inferred that he foresaw the risk of death → possibly from the wound that he inflicted.
In relation to section 167 (d) → there are a number of requirements → the accused must do a particular act or a combination of acts
In pursuit of an unlawful object
The person killed must have died in consequence
And the accused must know that those acts were likely to cause death.
So know those acts were risking death
The origins of section 167 (d) are in the felony murder rule.
Covers situations where defendant isnt really intending to hurt anyone → but are intending to commit a crime essentially
And they are risking someones death while they are pursuing a crime
So we say → we are going to place the label murderer on you → because you knew well that you were risking death for your unlawful ends.
Shadrock v R [2011] NZCA 388:
•“In our view, the right approach to s 167(d) is to require that there must be an unlawful purpose, being the commission of a crime, and also an act (that is, distinct from the commission of the “unlawful purpose” crime) that is known to be likely to cause and does actually cause death.”
•The act that causes death and is known to carry that risk must take place “in committing” the crime.
The case of Shadrock discussed section 167 (d)
Right approach → unlawful purpose → being the commission of a crime → must be a crime , cant be a tort or some other unlawful thing
And must also be an act that is distinct from that crime → but is in pursuit of that crime → and that act has to be known to be likely to cause death and actually cause death.
So the Act that causes death and is known to the defendant to carry that risk takes place in committing the crime → but is separate from the crime
The case of Shadrock → The Court of Appeal resolved this tension in the law → difficult body of case law to understand
So two possible interpretations of the relationship between 167 (b) and (d) -
One interpretation was that if injury was intended to the victim → then you have to charge 167 (b) → because that talks about the intentional infliction of injury
And (d) → confined to situations where the unlawful object didn’t involve injury → other kinds of crimes
Second interpretation was that you can rely on (d) even if unlawful object involved personal injury to the victim so long as the act that was known to be likely to cause death was different from the unlawful object
But was inflicted in the pursuit of the unlawful object → and Shadrock suggests this line of authority is correct.
Shadrock:
•The accused had snatched the victim’s bag and was attempting to drive off. She was trying to stop him and he hit her with the car - resulting in her death.
•Did the act causing death (assault) have to occur during the commission of the offence (theft), or was it enough for it to take place at a time and in a place sufficiently proximate to the commission of the offence?
•“if the fatal acts occur once the offence has concluded, that might not be murder under s 167(d). The issue for the court will be to define when and in what circumstances the offence has concluded. We are satisfied that this cannot merely be when the legal elements of the offence are complete.”
In Shadrock → the accused and his associates snatched a handbag from a woman in a shopping mall car park
And she was trying to get her handbag back → and he was trying to get out with the handbag in his car out of the shopping centre
And he struck and killed the victim.
And the issue was whether the act causing death which was assault with the car → had to occur during the commission of the unlawful purpose crime → which was theft of the handbag
Or whether it was enough for it to take place at a time and in a place sufficiently proximate to the commission of the offence?
So what was the relationship between the act which caused death and the defendant knew caused death and the unlawful object.
The Court said → the act which causes death and which the defendant knows is risking death.
Had to be committed in pursuit of the unlawful object.
So that raised the next question → Was the fatal act of assault was that in the pursuit of the theft.
One argument it was he had already done the theft, he had the handbag, on one interpretation he was trying to get away.
In a technical sense → the defendant had already completed the essential elements of the offence of theft at the time the death occurred.
And Courts said have to draw distinction between crime and its aftermath → on the one hand → if the fatal acts are performed while trying to escape → then we couldn’t limit the law in any sensible way.
So acts committed after the accused has left the scene of the crime cannot be committed for an unlawful object → because crime is already completed.
On the other hand just because the legal elements of the crime are complete at one point in time → does not mean the commission of the crime are over.
So you have to look at the facts → to see whether accused was still trying to commit the crime.
So here even though he technically completed the theft → the victim was trying to recover the bag → and he was still trying to alienate the bag form the victim.
So the Court held that his acts of trying to get away from her and accidentally striking her were still acts in the commission the theft.
Even though the theft on some level had been completed.
Comes down to a question of fact.
Policy Considerations:
•The provision has its origins in the felony murder rule
•“The Crimes Act criminalises certain acts because they are committed in a context of heightened danger wherein the victim is at greater risk of suffering harm. One possible policy factor recognised by Parliament when it enacted s 167(d) was that people who commit crimes put themselves in a situation where they will be more likely to resort to violence.”
The Doctrine of Transferred Malice:
•Section 167(c) “If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed.” [emphasis added]
•Note that transferred malice in subsection (c) only appears to apply to the mens rea set out in subsections (a) and (b).
•Why do you think that might be?
So you will notice that appears to only apply to the kinds of mens rea which is set out in paragraphs (a) and (b) of section 167.
Reason for this? They are pursuing something else
When looking at the wording of section (d) it probably covers unintended victims anyway.
Its not requiring a targeted intention at one person → so if you accidentally get the wrong person you have to transfer that mens rea over.
So (a) and (b) are requiring a targeted intention directed at one person
(d) the wording is broad enough to cover unintended victims → in any case.
(d) owes its origins to the doctrine of felony murder.
The Courts have sometimes placed limits on the transferred malice → the case of AG’s reference (3) 1994 → where the HOL refused to transfer the mens rea for murder which was directed at a pregnant woman to her unborn foetus. → under the doctrine of transferred malice.
Because unborn foetus → cannot be the victim of murder → the foetus cant be victim of murder at the time when the accused has the intention for murder towards the mother
The HOL said there is a fiction of transferred malice
And there is also a fiction that the victim is a human being → we are just not prepared to extend the law that far.
So in that fact situation → the foetus was born as a human being → and died in consequence of injuries that were the result of the murderous attack of the mother
But the accused was convicted of manslaughter by an unlawful and dangerous act rather than murder → we don’t know if the NZ Courts would do the same thing
Limit the doctrine in that way.
Section 167: Intentional or reckless murder:
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless as to whether death ensues or not:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.”
Felony-Murder: S 168 (1):
Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
(a) If he means to cause grievous bodily harm for the purpose of facilitating the commission of any offences mentioned in subsection (2) of this section, or facilitating the flight of or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury:
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
(c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
Felony murder finds some expression s167 (d)
But also a formal version in s168
Felony murder → ancient common law form of murder now codified in NZ → sometimes called constructive murder
Because you can be guilty of murder even though you don’t have any mental process in relation to someones death → no intention or recklessness as to death
If the legal requirements set out in s168 are satisfied → then it will be murder whether the offender means or does not mean for death to ensue, or knows or does not know whether death is likely to ensue.
Provision → culpable homicide is also murder in each of following cases…
Unpack this tricky section
First thing we have to prove → there are three alternatives
Prove the accused did one of three things
That they caused GBH with the intention of causing GBH → one possibility → prove they caused GBH intentionally → or
First requirement for s168:
•The accused must cause gbh with the intention of causing gbh; or
•The accused must intentionally administer a stupefying or overpowering thing; or
•The accused must by any means wilfully stop someone’s breath.
Have to prove one of those three things above for s168 →
Intentionally causing GBH with i
Intentionally administering a stupefying or overpowering thing
Or Wilfully stopping someones breath
Have to prove one of those three things → two very dangerous things
Stupefying or overpowering thing → for example knocks the person unconscious or severely impairs them so they are not fully conscious
And stopping them from breathing →
So very dangerous actions → or GBh with intention of GBH
Second requirement is → death results.
Second requirement s168:
Death must be caused by the act in question (gbh; stupefying thing or the stopping of the breath)
The person who has intentional GBH, stupefying thing, or stopping of the breath done to them dies in consequence → so have to establish causation
Third requirement for this provision →
Third Requirement:
•The accused must act for one of the following purposes:
•resisting lawful apprehension in relation to any offence whatsoever
•Facilitating the commission of any of the offences mentioned in s 168(2) or the escape afterwards or avoidance of detection of the offender upon the commission or attempted commission of one of these offences
They were acting for one of the following purposes → resisting lawful apprehension in relation to any offence whatsoever
So basically somebody is trying to arrest them for any offence → and they are resisting
And when they are resisting they have deliberately inflicted GBH, administered a stupefying or overpowering thing, or stopped someones breath
And caused their death →
or facilitating the commission of any of the offences mentioned in section 168 (2) → or the escape afterwards or avoidance of the detection of the offender upon the commission or attempted commission of one of these offences
So if you’re talking about a lawful arrest → can be any offence →
if talking about trying to commit the offence or escape or avoid being detected → has to be one of a particular list of offences set out in section 168 (2)
And you will see that they are very serious offences
Section 168 (2):
treason; communicating secrets; sabotage; piracy; piratical acts; escape or rescue from penal institution or lawful custody or detention; rape; murder; abduction; kidnapping; robbery; burglary; arson.
Not clear why some things included and others aren’t
The Courts have said this includes not only the basic versions of those offences → but any aggravated versions
So you will see as we go through this course that you can have a basic offence like robbery which is basically a combination of assault and theft
Considered to be much worse because the victim has assault to deal with as well as property to deal with → removing something forcibly from someone
But can have a basic robbery or an aggravated robbery → if two people , being in company, having a weapon are aggravating factors
So you can commit a felony murder in relation to the aggravated versions of these offences which are these offences + aggravated factors.
These offences/acts → have to be committed for one these purposes → some of which involve unlawful apprehension for any offence → some of which involve the commission of a very serious offence.
R v Shadrock:
•A citizens arrest under s 35(a) of the Crimes Act (which allows an arrest if you find someone committing any offence) constitutes a lawful apprehension for the purposes of s 168(1)(a).
•Here the victim was attempting to retrieve her handbag. Nothing to indicate that she was making an arrest.
Shadrock → raised s167 (d)
And it also raised s168 →
Because 167 (d) → traces its origins back to the felony murder rule as well
One issue was whether Shadrock could be convicted of felony murder → and the issue arose or it was argued
That the victim was trying to arrest him under s35 of the Crimes Act
If you catch someone in the act of committing a crime you can arrest them → the problem was on the facts the Court said that the victim wasn’t really conducting a lawful arrest → she was just trying to get her bag back
If you are arresting someone you have to let them know that you are arresting them → have to make it clear to them that they are not free to leave → she had not done this → she was just trying to grab the bag back’
And he didn’t know that she was invoking any lawful right to arrest → so unfortunately s168 → could not be relied on in that case
He was convicted under section 167 (d) → of reckless murder rather than felony murder
Infanticide: S 178 (1):
a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason or any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible….
•Post-partum depression and psychosis
Infanticide → set out in s178 (1) → this is a third type of homicide
It’s always available as an alternative to murder or manslaughter charges
But it really operates as a kind of defence → because it has a maximum penalty of three years imprisonment → and hard to find cases which invoke a term of imprisonment if someone has successfully raised infanticide
Usually a community sentence → compassionate verdict
But only arises in very limited circumstances → that you wont see that commonly
Third form of culpable homicide → but kind of a defence
Infanticide is the appropriate verdict where a woman causes the death of any…
Effectively it’s like a diminished responsibility defence → you are finding that the balance of her mind was disturbed so that we shouldn’t hold her fully responsible
Note that → she doesn’t have to kill the child whose breastfeeding caused the disturbance of mind → and it is also been held in the case law
R v P → that a child of hers includes an adopted child → so doesn’t have to be a natural child
So that was a case where the child that she killed was her five year old foster child → After she had given birth and was breastfeeding her youngest biological child
And the Court said that infancticide → applied to all children who can in fact in law and common sense be said to be hers → not just her biological kids
Lots of debate around law of infanticide → some people say murder manslaughter harsh → some say no biological foundation to it. → not natural for a woman to kill a child after giving birth and breastfeeding → arise from social situations not biology.
Hard to get infanticide proven.
Tragedies for the victim as well as offender
Shadrock for example killed himself in prison →
Section 63:
No one has a right to consent to the infliction of death upon himself; and, if any person is killed, the fact that he gave any such consent shall not affect the criminal responsibility of any person who is a party to the killing.
Section 63 → no one has the right to consent to the infliction of death upon himself…
Significant provision → because normally victim consent is available as a defence to an assault.
And most homicides are the victim dying in consequence of being assaulted.
So if the victim consents to that assault there is no unlawful act to cause death
Victim consent is a common law defence → which can be raised in relation to any assault
The Courts will withdraw the defence on policy grounds → when we are talking about really serious assaults → if it thinks that the victim is vulnerable and shouldnt be allowed to give consent
Jessie Kempson:
If the defendant does not have the mens rea for murder, the consent of the victim might mean that there is no unlawful act that causes death and therefore no culpable homicide. For example, a consent to a strangulation means that there is no assault that causes death.
Section 63 arose in the case of Jessie Kempson
Man who killed the British Backpacker
Charged with murder → and he argued victim consent → the assault or the thing that caused death was the strangulation of the victim
Everyone anticipating he was going to raise the rough sex defence → there isn’t really a defence called the rough sex defence → but defence of agreeing to be strangled for sexual pleasure
He raised defence of victim consent → and jury instructed that because of section 63 → if he had either the intention or recklessness as to her death → there was no defence of victim consent
So that became the issue → did he have the mens rea for murder?
The jury found → yes he did → that was based on evidence about the manner in which he had strangled her.
It was a strangulation → evidence was given that it was a strangulation that would have taken quite some time to kill her → so it wasn’t a quick loss of life
So he obviously had sustained pressure.
Who Jessie Kempson was may have had some influence in the jury’s verdict → he emerged as not a very savoury character → while she was dead on his bedroom floor, looking up ways to dispose of corpse, and looking at porn, and on tinder
And got suitcase… etc.
Wasn’t person who was credible in asserting that he did have the mens rea for murder
So not able to argue victim consent → meaning to convert strangulation into a lawful act → which would have meant no manslaughter → because lawful act causing death and therefore no non culpable homicide.
Section 179: Aiding and Abetting Suicide:
(1) Every one is liable to imprisonment 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.
(2) A person commits an offence who incites, counsels, or procures another person to commit suicide, even if that other person does not commit or attempt to commit suicide in consequence of that conduct.
(3) A person who commits an offence against subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 years.
(4) This section is subject to section 37 of the End of Life Choice Act 2019.
•Section 201 – “Everyone is liable to imprisonment for a term not exceeding 14 years who, wilfully and without lawful justification or excuse, causes or produces, in any other person any disease or sickness.”
Two provisions section 167 → aiding abetting suicide → max penalty of 14 years imprisonment
Other provision raised in Lucretia Seales case →
Incites, counsels, or procures → means encourages, or causes,
Aids and abets → means ‘helps’.
This provision is subject to section 37 of our Euthanasia End of Life Choice Act 2019.
Section 201 → being liable to imprisonment 14 years…
Causes in any other person disease →
Could be relevant because it could convert giving someone a deadly disease into a homicide → combining section 201 with section 160 (2) (a).
