Homicide 3

Question 1

179 Aiding and abetting suicide legislation

Answer 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 orattempts to commit suicide in consequence thereof; or
(b) Aids or abets any person in the commission of suicide.

Question 2

180 Suicide pact

Answer 2

180 Suicide pact

(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against section 179 of this Act.

Question 3

the term suicide pact means

Answer 3

a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

Question 4

181 Concealing dead body of child legislation

Answer 4

Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.

Question 5

The requirement that the act of disposal must be done with the intent of

Answer 5

concealing the fact of birth may be satisfied even though the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual.

Question 6

What types of things fall into the category of dangerous things discussed in s156 of the Crimes Act 1961?

Answer 6

Section 156 of the Crimes Act 1961 sets out the statutory duty of people in charge of dangerous things to take reasonable precautions to ensure people’s safety. Such things include motor vehicles, trains, animals, ships, weapons, machinery or explosives, and may
include such things as the machinery inside a mussel factory, faulty scaffolding that collapses because of faulty erection and inspection, unfenced holes or other industrial-type incidents, depending on the circumstances.

Question 7

In one incident a man stabs a woman repeatedly; the same thing happens in another incident involving a different man and woman. As a result, both women need to undergo emergency surgery during which both die of heart failure. The first woman suffers heart failure in an
unpredicted reaction to the anaesthetic, whereas the second woman, although she suffers the same reaction and with the same result, wears a medic-alert badge carrying information about her known heart condition and reaction to anaesthetic. Is there any difference in these cases?
Is anybody held legally responsible for either of their deaths? If so, who, and what would the charge be?

Answer 7

If a woman is stabbed repeatedly and, during emergency surgery in relation to those wounds, dies of a heart attack where all reasonable precautions have been taken, the person who stabbed her initially and not the medical staff are responsible for her death. The degree of liability depends on the element of mens rea and whether the attack was provoked. However, if the woman was wearing a medic-alert bracelet that described her heart condition and her reaction to anaesthetic, and the anaesthetist failed to notice it, the person who did the
stabbing would not be culpable and the anaesthetist’s actions would need to be scrutinised under the provisions of s155 of the Crimes Act 1961 (duty of persons doing dangerous acts) to evaluate their responsibility. Simply, the death needs to be a direct result of the initial
attack and not related to another condition.

Question 8

Is a person who helps another person commit suicide criminally liable for their actions?
Explain your answer.

Answer 8

Because the law does not recognise a person’s right to consent to death, people who help another to commit suicide or who are part of a suicide pact but survive are responsible for the other person’s death. In such cases the surviving person is charged with manslaughter.

Yes they are criminally liable.
Section 179 makes it an offence for a person (Person A) to assist another person (Person B) to commit suicide without any intention of Person A committing suicide themselves. For example, when a terminally ill person (Person B) asks their partner to help them commit
suicide and their partner (Person A) does. Person A would be liable for aiding and abetting suicide, which has a maximum penalty of 14 years imprisonment.
Section 180(1) makes it an offence to enter into a suicide pact, and only one person dies as a result of an action by another person. For example if Person A and Person B enter a suicide pact, and Person A shoots Person B, killing Person B, before shooting themselves, but Person
B lives. Person B would be guilty of manslaughter, and not murder.
Section 180(2) makes it an offence for two people to enter into a suicide pact, where they are both responsible for the actions that caused one of their deaths (Person A), and where one person survives (Person B). For example if Person A and Person B both self administer a high dosage of morphine and Person A dies as a result of their own actions, but Person B survives the overdose. Person B would be guilty of being a party to a death under a suicide pact and is liable to imprisonment for a term not exceeding 5 years. Person B cannot be convicted of an offence under s. 179 of the Crimes Act (Aiding and Abetting Suicide).

Question 9

18 General admissibility of hearsay Evidence Act 2006 legislation

Answer 9

A hearsay statement is admissible in any proceeding if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 10

Justified defined

Answer 10

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly.

Question 11

Protected from criminal responsibility” means

Answer 11

means the person is not guilty of an offence but civil liability may still arise.

Question 12

Infancy
Defences for children are set out in s21 and s22 of the Crimes Act 1961.
21 Children under 10

Answer 12

(1) No person shall be convicted of an offence by reason of any act done or omitted by
him when under the age of 10 years.

Question 13

Infancy
Defences for children are set out in s21 and s22 of the Crimes Act 1961.
22 Children between 10 and 14

Answer 13

(1) No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.

Question 14

Proof of Age case law

Answer 14

R v Forrest and Forrest [
“The best evidence possible in the circumstances should be adduced by the
prosecution in proof of [the victim’s] age.”

Question 15

If a person is deemed to have been justified and not criminally liable for an offence, may they then be proceeded against in a civil action?

Answer 15

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly.

Question 16

When interviewing 10 – 13 year old children for the offence of murder, what must be shown in addition to the mens rea and actus reus requirements for the child to be held criminally liable for the offence.

Answer 16

For children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence

Question 17

From whom should you seek advice in relation to questioning of children and young persons?

Answer 17

Seek advice from your District Youth Prosecutor to ensure compliance with the CYPF Act, particularly in relation to questioning children and young persons.

Question 18

A 13-year-old charged with murder, having been the subject of a committal hearing in the Youth Court, will be remanded to appear next in which court to have the matter heard?

Answer 18

10 to 13-year-olds charged with murder or manslaughter are usually dealt with under the youth justice provisions of the CYPF Act although charges of murder and manslaughter will be heard in the High Court following the committal process in the Youth Court

Question 19

Legal insanity is defined in s23 of the Crimes Act 1961:

23 Insanity legislation

Answer 19

(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2) No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable—
(a) Of understanding the nature and quality of the act or omission; or
(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
(3) Insanity before or after the time when he did or omitted the act, and insane delusions,
though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.

Question 20

Where does the burden of proof lie with the insanity defence

Answer 20

Because in most cases the defence pleads insanity and because the law assumes that the defendant is sane, it is up to the defence to prove that the defendant is insane. As in all cases where the burden of proof is on the
defendant, the standard of proof required is not as high as that demanded of the prosecution. If the defence cannot prove that the defendant is insane, but
the jury thinks that it is more likely that the defendant is insane, then the defendant is entitled to an acquittal on the grounds of insanity

Question 21

What is the burden of proof required by the defence for insanity

Answer 21

Thus, the defendant is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.

Question 22

The M’Naghten’s rules (or test) is frequently used to establish whether or not a defendant is insane. It is based on the person’s ability to think rationally, so that if a person is insane they were acting under such a defect of reason from

Answer 22

a disease of the mind that they did not know:
 the nature and quality of their actions, or
 that what they were doing was wrong.

Question 23

The Courts have not attempted a precise or comprehensive definition of the term “a disease of the mind”. It has been said to be

Answer 23

“a term which defies precise definition and which can comprehend mental derangement in the widest sense”

Question 24

“Disease of the mind” does not include a temporary mental disorder caused by some factor external to the defendant, such as

Answer 24

a blow on the head, the absorption of drugs, alcohol, or an anaesthetic, or hypnotism.

Question 25

Disease of the mind is not a medical question

Answer 25

but a legal one

Question 26

Automatism Definition

Answer 26

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

Question 27

Automatism - Case Law

Answer 27

R v Cottle
Doing something without knowledge of it and without memory afterwards of having done it -a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.

Question 28

How may Automatism be caused

Answer 28

Concussion, sleepwalking, brain tumour, epilepsy, arteriosclerosis consumption of alcohol or drugs

Question 29

What are the Two types of automatism

Answer 29

Sane automatism

Insane automatism

Question 30

What is Sane automatism

Answer 30

the result of somnambulism (sleepwalking), a blow to the

head or the effects of drugs

Question 31

What is Insane automatism

Answer 31

the result of a mental disease.

Question 32

The High Court has said that even with a charge of “strict liability” like driving with excess breath alcohol, it is possible to raise this defence. However, because it is a strict liability offence (which means that no mens rea
need be proved by the prosecution) the defence must establish a defence to

Answer 32

the balance of probabilities.

Question 33

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence:

Answer 33

and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence:
 where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 1961 into effect
 if intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
 where the intoxication causes a state of automatism (complete acquittal).