Homicide 2

Question 1

Culpable homicide that does not amount to murder
Except in cases of infanticide, culpable homicide that does not amount to murder is treated as manslaughter. As mentioned in Chapter 1, the key difference between manslaughter and murder depends on the mental element that must be established to support the charge.

Answer 1

Common law draws a further distinction between:
 voluntary manslaughter
 involuntary manslaughter

Question 2

The following are common instances from which a charge of manslaughter may arise.

Answer 2

Killing in a sudden fight
Manslaughter by unlawful act
Manslaughter by negligence
Negligent Drivers

Question 3

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

Answer 3

 self-defence

 the requisite mens rea for a murder charge

Question 4

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

Answer 4

 If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an acquittal.
 If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter.

Question 5

Manslaughter by unlawful act

DPP v Newbury and Jones outlines a four point test for proving unlawful act for manslaughter.

Answer 5

1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death

Question 6

Legislation 150A

Standard of care applicable to persons under legal duties or performing unlawful acts

Answer 6

For the purposes of this Part, a person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, to which this
section applies only if, in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that
legal duty applies or who performs that unlawful act.

Question 7

Gross negligence must be shown

Answer 7

whether the case relates to an unlawful act or an omission.

Question 8

Punishment of manslaughter

Section 177 provides the punishment for manslaughter:

Answer 8

177 Punishment of manslaughter

(1) Every one who commits manslaughter is liable to imprisonment for life.

Question 9

The distinguishing ingredient in a charge of murder is the offender’s

Answer 9

awareness or recklessness of the knowledge that their actions are likely to result in the death of the other person. The jury decides whether the defendant had such knowledge at the time by drawing inferences from all the circumstances, and from what the offender said and did at the time.

Question 10

Where two or more people are to be convicted of culpable homicide under section 168,

Answer 10

you do not need to prove that the secondary party knew that death was a probable consequence of their unlawful activity, just that the secondary party knew it was probable the principal might do an act that would, if death resulted, bring their conduct within the terms of section 168.

Question 11

Associated murder charges include:

Answer 11

 attempt to murder
 counselling or attempting to procure murder
 conspiracy to murder
 accessory after the fact to murder

Question 12

Common law defines two distinct types of manslaughter:

Answer 12

 voluntary manslaughter

 involuntary manslaughter

Question 13

If a homicide arose out of self-defence, the defendant should be acquitted; if it arose out of a suicide pact the charge

Answer 13

should be manslaughter

Question 14

If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?

Answer 14

In a case where an offender intends to kill A but inadvertently strikes and kills B, the guilt of the offender is not affected. Section 167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he did not mean to
hurt the other person, then it is Murder.

Question 15

In a charge of attempt to murder, what is the Crown required to prove?

Answer 15

When a charge of attempt to murder is made, the Crown must establish the mens rea and actus rea as set out in s72 of the Crimes Act 1961. An intention to kill must be proved

Question 16

Define voluntary and involuntary manslaughter

Answer 16

In voluntary manslaughter, mitigating circumstances (such as a suicide pact) reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm. Involuntary manslaughter covers those types of
unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm.

Question 17

When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?

Answer 17

When you are considering what charge to file after someone has been killed in a sudden
fight, you need to consider whether there was:
 self-defence
 the requisite mens rea for a murder/manslaughter charge.

Question 18

Infanticide defined

Answer 18

178 Infanticide
(1) Where 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 of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

Question 19

In cases of infanticide, the killing of the child must be in a manner that would amount to culpable homicide. As well as establishing that fact, you must prove the mother’s mind was

Answer 19

disturbed as a consequence of the birth of that

child or of another child. The term “as a consequence” includes the period of lactation.

Question 20

If a woman is charged with murder or manslaughter, but the jury believes her state of mind is due to the effects of childbirth, the jury is required to return a special verdict of acquittal on account of insanity caused by childbirth.
However, the prosecution may file charging documents for both infanticide and murder of an infant, and it is up to the jury

Answer 20

to decide on the mother’s state
of mind.
In charges of infanticide, it is for the jury to decide on the mother’s state of mind.

Question 21

151 Duty to provide the necessaries and protect from injury legislation

Answer 21

1) Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—
(a) to provide that person with necessaries; and
(b) to take reasonable steps to protect that person from injury

Question 22

152 Duty of parent or guardian to provide necessaries and protect from injury legislation

Answer 22

(1) Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury.

Question 23

153 Duty of employers to provide necessaries legislation

Answer 23

Every one who as employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured, by such omission.

Question 24

Vulnerable adult Means

Answer 24

“a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person”.
Vulnerability may be short-lived or temporary. Whether an adult is vulnerable is a matter for objective determination and should not depend on that person’s subjective perception.

Question 25

“necessaries of life” are

Answer 25

commodities and services necessary to sustain life, such as food, clothing, housing, warmth and medical care

Question 26

Abandoning a child legislation

Answer 26

154 Abandoning child under 6
Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.

Question 27

155 Duty of persons doing dangerous acts legislation

Answer 27

Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such
act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 28

156 Duty of persons in charge of dangerous things legislation

Answer 28

Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take
reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 29

157 Duty to avoid omissions dangerous to life legislation

Answer 29

Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 30

Section 163 concerns killing someone by influencing their mind. This means that if someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment, and committed suicide, the person causing the anxiety would not be culpable for the death.
163 Killing by influence on the mind legislation

Answer 30

No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by
wilfully frightening any such child as aforesaid or a sick person

Question 31

Instances where death may have been accelerated by another’s actions are dealt with in s164:
164 Acceleration of death legislation

Answer 31

Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.

Question 32

165 Causing death that might have been prevented legislation

Answer 32

Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.

Question 33

166 Causing injury the treatment of which causes death legislation

Answer 33

Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

Question 34

R v Blaue provides a clear example of this piece of legislation in practice The victim [a Jehovah’s witness] had been stabbed but refused to accept a blood
transfusion on the ground that to do so would be contrary to her religious belief; despite a warning that she would die, she persisted in her refusal and in fact died on the following day. The cause of death was bleeding into the
pleural cavity caused by the stabbing. An appeal against a conviction of manslaughter, on the ground that her refusal to have a blood transfusion was unreasonable and broke the chain of causation between the stabbing and her death, was dismissed.
Case law:

Answer 34

R v Blaue
Those who use violence must take their victims as they find them.

Liability depends on the mens rea not on the victim’s subsequent actions.

Question 35

When treatment of injury is fatal
Provisions for death caused by treating injury are in s166.
This provision covers situations where a person dangerously injures the victim and, as a result, treatment is administered to the victim, and that treatment is the immediate cause of the victim’s death. The person who
caused the injury is liable for the injury and its consequences. The degree of that liability will rely on the mens rea element. When treatment is sought for an injury and the injured person dies, the person who caused the original injury is

Answer 35

liable for the death, even if the person has died as the result of improper treatment, so long as the treatment was applied in good faith.

Question 36

What does Novus acus Interviens mean

Answer 36

[Latin: a new intervening act] An intervening act that

breaks the chain of causation

Question 37

Examples The following cases are further examples of s166:

Causing injury the treatment of which causes death

Answer 37

 A person was wounded in a duel and died as a result of the surgical operation made necessary by the wound. The person who inflicted the wound was guilty of murder.
 The deceased had been severely kicked by the defendant. A surgeon gave the deceased some brandy to restore her, but some of it went into her lungs. It was suggested this was the immediate cause of death. However, the court held this did not affect the defendant’s criminal responsibility.
 It was necessary to operate on a person as a result of an assault on him by the defendant. The person died under the administration of anaesthetic. It was held that this did not affect the defendant’s criminal responsibility.