Homicide law Flashcards
What is the title of Section 159?
Killing of a child
What are the critical factors to consider for a charge of murder?
Whether the offender intended to:
Kill the person or
Cause bodily injury that the offender knew was likely to cause death
If neither intentions, or critical factors, can be proven what is the most likely charge?
Manslaughter
What is an example of a situation where someone is culpable for death but it does not amount to murder?
Failing to perform a legal duty (seeking medical treatment for an ill person) OR
Having acted unlawfully but not imagining the possibility of death occurring (driving whilst intoxicated and killing someone)
What may the jury do if they do not believes the prosecution proved murder?
They may return a verdict of manslaughter
What is the survivor of a suicide pact likely to be liable for?
Manslaughter
What is the definition of homicide?
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
What can an organisation be convicted of?
An organisation can be convicted as a party to the offence of manslaughter but cannot be convicted as either a principle offender or party to the offence of murder.
Why can’t an organisation be convicted of murder?
Because murder carries a mandatory life sentence
When does a child become a human being within the meaning of S159 crimes Act 1961?
A child becomes a human being when it has proceeded in a living state from the body of its mother, whether it has:
- Breathed or not
- An independent circulation or not
- The navel string is severed or not
When is the killing of a child (that meets the criteria set out in S159 CA 61) a homicide?
If it dies in consequence of injuries received before, during or after birth
What can homicide be?
Culpable or not culpable
When is homicide culpable?
When it consists in the killing of any person
- By an unlawful act or
- By an omission without lawful excuse to perform or observe any legal duty; or
- By both combined; or
- By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or
- By wilfully frightening a child under the age of 16 years or a sick person
Is non-culpable homicide an offence?
No
Unlawful act definition
Means a breach of any act, regulation, rule or bylaw
What do you need to prove culpable homicide?
You need to prove that death was caused (at least in part) by the breach of an act, regulation, rule or bylaw.
What does the “unlawful act” need to be?
The common law requires that the act must be one that is likely to do harm or that is inherently dangerous as well as being unlawful.
What “unlawful act” or breach would not be sufficient to meet the definition of a culpable homicide?
The breach of an electoral law because although it is unlawful, it is not likely to do harm to the deceased and is not inherently dangerous.
Does “public safety” have to be the primary objective in the act, regulation, rule or bylaw for it to be included in “unlawful act”?
No, it need not be the primary objective.
It was confirmed in R v Lee that the act must be objectively dangerous, what does this mean?
That a reasonable person in the shoes of the defendant would know that the harm existed.
What else was held in R v Lee?
That “some” harm means more than trivial harm
For an act to be “unlawful” what must be met?
All elements of the offence, including mens rea and it must be done without lawful justification or excuse.
What is an example of an unlawful act leading to death? What must be proven?
An assault that leads to death of the victim. It must be proved that the defendant intended to assault the victim and didn’t have a defence such as self defence.
When will someone be criminally responsible against S150A relating to standard of care applicable to persons under legal duties or performing legal acts?
They will only be criminally responsible if the unlawful act is a MAJOR departure from the standard of care expected from a reasonable person.
What does culpable homicide include?
Any death caused by an omission, without lawful excuse, to perform or observe any legal duty.
What is covered in homicide by omission to perform a legal duty?
It 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.
What can a person who omitted to perform a legal duty be charged with?
Manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea.
What is a legal duty?
This term refers to those duties imposed by statute or common law including uncodified common law duties.
What are “duties” defined as under the Crimes Act ?
- Provide the necessaries and protect from injury
- Provide necessaries and protect from injury to your charges when you are a parent or guardian
- Provide necessaries as an employer
- Use reasonable knowledge and skill when performing dangerous acts (surgery)
- Take precautions when in charge of dangerous things, such as machinery
- Avoid omissions that will endanger life
What must be proved for an omission of a legal duty to be a homicide?
That the 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”
In some cases, both unlawful acts and the omission to perform a legal duty are applicable to the same act. What is an example of this?
E.g. 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.
In common law, what 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 then 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
Can threats, fear of violence and deception lead to culpable homicide?
Yes
What do you need to prove for threats, fear of violence or deception to be culpable homicide?
You must prove that the fear of violence was well founded, but you do not need to show the deceased’s action was the only means of escape.
What did R v Corbett identify in relation to Threats, fear of violence and deception?
The victims conduct should be
- Reasonably foreseen
- Proportionate to the threat OR
- 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.
What are 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.
For the offence of “frightening a child or sick person” under S160, what does this need to be as a result of?
It need not be a result of fear of violence but may be caused by any act that frightens the child or sick person, so long as it is done wilfully
“Wilfully frightening” definition
“Intending to frighten or at least being reckless as to this”
What does Simester and Brookbanks suggest in regards to “Wilfully frightening”?
It 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 elements so that the defendant must at least have been aware of a real risk the victim is under 16 or sick.
Does the defendant need to know that the victim is under 16 or sick for a charge under S160?
The defendant must, at least, have been aware of a real risk that the victim was under 16 or sick.
Is “Killing by influence on the mind” an offence?
Alone it is not an offence, except as provided in S163 which applies 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.
What is an example of an offence under S163 (Killing by influence on the mind)?
If a man took tests in hospital for an ongoing stomach complaint and someone at the hospital says he has terminal cancer (as a joke) and the man commits suicide as a result, the sender could be charged.
Can you consent to death?
No one has the right to consent to being killed.
Consent will not affect the criminal responsibility of anyone involved in the killing.
Can a person be charged for a death relating to lawful games and contests?
Generally in lawful contests and games (boxing, wrestling, football and hockey) the death of a participant from injuries received during the game is normally treated as non-culpable homicide.
When can a person be charged for a death relating to lawful games and contests?
If a contestant causes the death of another by an act that is likely to cause serious injury, they can be found guilty of manslaughter.
What must you do to establish / prove a death?
You must prove the:
- Death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable
How can death be proved?
By direct and / or circumstantial evidence.
Can a charge of murder be made even when a body has not been located?
Yes
When an act (resulting in death) is justified, what does this mean?
That the perpetrator is exempt from both criminal and civil liability
What is an example of “Justified” acts that are exempt from both criminal and civil liability?
- Homicide committed in self-defence
- Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of any-one
For a “justified act” resulting in death, what amount of force is required for it to be justified?
The force is limited to that which is reasonably necessary in the circumstances.
What are other non-culpable homicides protected from?
Criminal responsibility only.
When is culpable homicide defined as murder? (S167)
If the offender:
- Intends to cause the death
- Intends to cause bodily injury to the person killed knowing it would likely cause death AND is reckless as to whether death ensues
- Intends to cause death or being reckless as to whether death occurs, means to cause bodily injury, and by accident or mistake kills another person without meaning to hurt that person
- For any unlawful object does an act that he knows is likely to cause death and kills any person, though he may have desired that this be effected without hurting anyone
Section 168
Culpable homicide is also murder in each of the following cases, whether or not the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
- If he means to cause GBH for the purpose of facilitating the commission of any of the offences in sub 2, or facilitating the flight 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
- If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof
- 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.
Intent definition
There must be an intention to commit the act and an intention to get a specific result
Deliberate act definition
Intent means that an act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Example of a deliberate act
A person intends to strike the victim with their fist on the right side of the face above the eye
Result definition
In this context, result means “Aim, object or purpose”
When charging an offender with murder under S167, you must show that the defendant:
Intended to cause the death, or
Knew that the death was likely to ensue or
Was reckless that death would ensue.
If the intention requirements under S167 are not met, what does this mean RE charging decision?
If the intent is not present, the offence is manslaughter UNLESS it falls under the provisions of infanticide.
What does “Acting recklessly” involve?
Consciously and deliberately taking an unjustifiable risk.
What must be proved for “acting recklessly”?
That not only was the defendant AWARE of the risk and proceeded regardless, but also that it was unreasonable for him to do so.
What does “A real possibility” mean under the Cameron test?
Is completely subjective and is the same as something that “could well happen”
If there is some social utility in applying the ‘cameron test’ what will the charging depend on?
Where there is some social utility in the actions of the defendant, whether those actions were unreasonable will depend on “whether a reasonable and prudent person would have taken the risk”
What is an example of no social utility?
A game of Russian roulette or personal violence with a risk of serious injury or death
What is an example of high social utility?
A surgeon undertaking a risky but lifesaving surgery.
What “general rule” for recklessness was established in R v Tipple?
That the offender know of, or have a conscious appreciation for the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”.
To show that the defendants state of mind meets the provisions of s167, what must you establish?
- That the defendant
Intended to cause bodily injury to the deceased - Knew the injury was likely to cause death
- Was reckless as to whether death ensued or not
What will the court look at in regards to killing in pursuit of an unlawful object?
- Whether the defendant knew the acts were likely to cause death, and
- Whether the defendants original intent of indecent assault amounted to an unlawful object
In relation to ‘whether the defendant knew the acts were likely to cause death’, what did the court find?
That the series of acts of violence by the accused were continuous and within a very short space of time. There was no evidence to suggest that his state of mind or purpose changed. The combination of acts resulted in death and there is no requirement to prove that the accused foresaw exactly how death would occur.
In relation to ‘whether the defendants original intent of indecent assault amounted to an unlawful object’, what did the court find?
It does not need to be the same as that injury that causes death. Here the indecent assault can be such an unlawful object where other person injuries are inflicted in the knowledge that they are likely to cause death.
Who decides whether the defendant knew that his / her actions at the time were likely to cause death?
The jury.
What informs a jury’s decision as to whether the defendant knew their actions were likely to cause death?
By drawing inferences from all circumstances, including what the defendant said and did at the time.
What distinction is made with an unlawful object?
A distinction is made between an unlawful object and an object that may be illicit or immoral.
What is covered under S66?
Parties to offences
What do Sections 66 (parties to offences) and 168 (Extended definition of murder) both cover?
They both provide for the criminal responsibility of people who are in the course of carrying out an unlawful purpose when one of them kills someone.
When can you be charged as parties to an offence?
When 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein.
If you are a ‘party’ to an offence, what are you liable for?
Each of them is party to every offence committed by any one of them in the prosecution of the common purpose
What makes you liable for every offence committed (parties to)?
If the commission of that offence was known to be a probable consequence of the prosecution of the common purpose
What is “Grievous bodily harm”
Very serious harm, such as an injury to a vital organ
To come under S168(c), what must the stopping of the victims breath be?
It must be done wilfully
