Homicide Law Flashcards
Culpable Homicide - Introduction
Homicide is the killing of one human being by another. Before a homicide can become the subject of a criminal charge, it must be proved that the killing was blameworthy or culpable. If the act was culpable, you need to work out whether the act was murder, manslaughter or, less commonly, infanticide (see table following page)
The various charges related to culpable homicide are discussed in more detail in the following chapters. This chapter introduces the key terms and concepts involved in all cases of culpable homicide, allowing you to decide whether an actual offence has been committed and to select the appropriate charge.
Murder or manslaughter?
The critical factors to consider for a charge of murder are whether the offender intended to:
- kill the person, or
- cause bodily injury that the offender knew was likely to cause death.
If neither of these intentions can be proven, the most likely charge is
manslaughter.
You can charge an offender with manslaughter in any case where a person has been killed in a manner that does not amount to murder. For example, the offender may have failed to perform a legal duty (such as getting an ill or injured person medical treatment) or may have acted unlawfully but not envisaged the possibility of death occurring (for example, driving while intoxicated or incapable and killing someone).
In addition, as the burden of proof regarding intent rests with the
prosecution, a jury may return a verdict of manslaughter if it feels intent or any of the other elements of murder have not been proved, The survivor of a suicide pact is liable to be charged with only manslaughter.
Homicide defined
158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Homicide must be culpable to be an offence
However, in cases of:
* Manslaughter; an organisation can be convicted as a party to the offence (section 66(1))
* Murder, an organisation cannot be convicted as either a principal
offender or a party to the offence. This is because the offence carries a mandatory life sentence.
Murray Wright Ltd [1970] NZLR 476.
Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender:
Killing of a child
Section 159 defines when a child becomes a human being, and is therefore capable of being murdered under section 158:
159 Killing of a child
(1) A child becomes a human being within the meaning of this Act 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 navel string is severed or not.
(2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
Culpable homicide s160
Culpable homicide means the killing is blameworthy. It includes murder, manslaughter or infanticide. Section 160(2) defines what constitutes culpable homicide:
160 Culpable homicide
(1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person—
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any legal duty; 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 wilfully frightening a child under the age of 16 years or a sick person.
(3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.
By unlawful act: s160(2)(a)
The term “unlawful act” is defined in the section 2 of the Crimes Act 1961 as follows:
Unlawful Act – means a breach of any Act, regulation, rule, or bylaw.
This definition was added when the Crimes Act was amended in 2011. To prove culpable homicide under section 160(2)(a) you need to prove death was caused (at least in part) by the breach of an Act, regulation, rule or bylaw.
The common law requires that the act must be one that is likely to do harm or is inherently “dangerous’, as well as being unlawful. The leading case which confirms this is cited below.
Thus, a breach of an electoral law, for example, would not suffice because although it is unlawful, it is not an act likely to do harm to the deceased nor is it an inherently dangerous act.
The Court of Appeal in in this matter also noted that safety to the public need not be the primary objective of the prohibition in question.
The Court in R v Lee1 confirmed that the act must be objectively dangerous. That is, would a reasonable person in the shoes of the defendant know the risk of harm existed? It was also held that “some” harm means “more than trivial” harm.
To be unlawful, there must be proof of all of the elements of the offence, including any mens rea and it must be done without lawful justification or excuse. For example where an assault has led to the death of the victim you must prove the defendant intended to assault the victim and didn’t have a defence such as self defence.
R v Myatt [1991] 1 NZLR 674; (1990) 7 CRNZ 304 (CA)
[Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes of culpable homicide] it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.
Standard of care applicable to persons under legal duties or performing unlawful acts: s150A
Section 150A applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.
In such a case the person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
In common law, allegations of culpable homicide have been supported where the offender has caused death by:
- committing arson
- giving a child an excessive amount of alcohol to drink
- placing hot cinders and straw on a drunk person to frighten them
- supplying heroin to a person who subsequently dies from an overdose
- throwing a large piece of concrete from a motorway overbridge into the path of an approaching car
- conducting an illegal abortion where the mother dies.
Omission to perform legal duty: s160(2)(b)
Culpable homicide includes any death caused by an omission, without lawful excuse, to perform or observe any legal duty as defined by s160(2)(b).
This covers cases where nothing is done when there is a legal duty to act, and certain cases of positive conduct accompanied by a failure to discharge a legal duty, in particular a duty of care. If death results from any such omission the defendant may be convicted of manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea.
The expression “legal duty” refers to those duties imposed by statute or common law including uncodified common law duties:
Duties imposed by statute are mainly common law duties that have been
embodied in statute. The Crimes Act 1961 defines duties to:
* provide the necessaries and protect from injury (s151)
* provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)
* provide necessaries as an employer (s153)
* use reasonable knowledge and skill when performing dangerous acts such as surgery (s155)
* take precautions when in charge of dangerous things, such as machinery
(s156)
* avoid omissions that will endanger life (s157).
Omission of legal duties can amount to homicide. For the requisite causal connection, it seems that it must appear that death would not have occurred as and when it did had the defendant performed the duty in question, and it must have been “a substantial and operative cause of death”:
Unlawful acts and omission of duty: s160(2)(c)
Sometimes both unlawful acts and the omission to perform a legal duty are applicable to the same act. For example, to drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when you are in charge of a dangerous thing (s156).
Threats, fear of violence and deception: s160(2)(d)
A person is guilty of culpable murder if they cause the victim by threats, fear of violence or deception to do an act that results in the victim’s death. You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape.
In R v Corbett2 the Court identified that “the victim’s conduct must be such that it could be reasonably foreseen, is proportionate to the threat, or is “within the ambit of reasonableness. Although the victim might do the wrong thing or act unwisely, it is sufficient if the reaction is “in the foreseeable range.”
Threats, fear, or deception can result in culpable homicide.
Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:
* jumps or falls out of a window and dies because they think they are
going to be assaulted
* jumps into a river to escape an attack and drowns
* who has been assaulted and believes their life is in danger, jumps from a train and is killed.
R v Tomars [1978] 2 NZLR 505
formulates the issues in the following way:
1. Was the deceased threatened by, in fear of or deceived by the defendant?
2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
3. Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?
Frightening a child or sick person: s160(2)(e)
In this instance, the fright need not be a result of fear of violence as under s160(2)(d), but may be caused by any act that frightens the child or sick person, so long as it is done wilfully.
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.
Simester and Brookbanks3
suggest “wilfully” would require that the offender intended to frighten, or is at least subjectively reckless as to the risk of that.
Mens rea should be interpreted as applying to all the elements in s160(2)(e), so that the defendant must at least have been aware of a real risk that the victim is under 16 or sick.
Killing by influence on the mind
Killing by influence on the mind alone is not a crime except as provided in s163. This would apply to someone who mentally tortures another person who is already mentally or physically sick, so that the victim has a mental breakdown and commits suicide.
Example:
A man took tests at a hospital for an ongoing stomach complaint. “For a joke”, a hospital employee sent him a letter saying he had terminal, inoperable cancer. If the man had, as a consequence, committed suicide, the sender of the letter could be charged under s163.
