Homicide Law

Question 1

Define homicide

Answer 1

Section 158 CA61

Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

Question 2

What are the critical factors for a charge of murder?

Answer 2

Whether the defendant intended to:

• kill the person, or
• cause bodily injury that the offender knew was likely to cause death.

If neither of these intentions are proven, the most likely charge is manslaughter.

Question 3

When can you charge a person with manslaughter?

Answer 3

In any case where a person has been killed in a manner that does not amount to murder:

• failure to perform a legal duty
• acted unlawfully but not envisaged the possibility of death occurring

Question 4

Can an organisation be convicted of murder?

Answer 4

An organisation cannot be convicted of murder as either a principle offender or a party because the offence carries a mandatory life sentence.

An organisation can be convicted as a party to manslaughter.

Question 5

R v Murray Wright Ltd

Answer 5

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.

Question 6

When does a child become human and therefore capable of being murdered?

Answer 6

S159 CA61
(1) A child becomes a human being within the meaning of the 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 independent circulation or not, and whether the navel string is severed or not.

(2) The killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth.

Question 7

What does culpable homicide mean?

Answer 7

It means the killing is blameworthy and includes murder, manslaughter or infanticide.

Question 8

S160(2) CA61 - Culpable homicide

Answer 8

(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 willfully frightening a child under the age of 16 years or a sick person.

Question 9

Is non culpable homicide an offence?

Answer 9

S160(4) CA61

Homicide that is not culpable is not an offence.

Question 10

Define unlawful act?

Answer 10

S2 CA61
Unlawful act means a breach of any 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 dangerous.

Question 11

R v Myatt (unlawful act)

Answer 11

Before a breach of any Act etc would be unlawful 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.

Question 12

R v Lee (objectively dangerous)

Answer 12

The act must be objectively dangerous. Would a reasonable person in the shoes of the defendant know the risk of harm existed?

Question 13

What must be proven for an act to be unlawful?

Answer 13

There must be proof of all the elements of the offence, including mens rea and it must be done without lawful justification or excuse (such as self defence)

Question 14

S150A persons under legal duties.

Answer 14

S150A CA61.
A 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.

Question 15

Examples of culpable homicide that have been supported under common law?

Answer 15

The offender has caused death by;

• committing arson
• giving a child excessive amounts of alcohol
• placing hot cinders and straw on a drunk person to frighten them.
• supplying heroin to a person who subsequently dies of an overdose
• throwing a large piece of concrete from a motorway over bridge into the path of an approaching car.
• conducting an illegal abortion where the mother dies.

Question 16

Legal duty?

Answer 16

Legal duty refers to those duties imposed by statute or Common law including uncodified common law duties.

Question 17

List legal duties embodied in the Crimes Act?

Answer 17

• Provide the necessaries and protect from injury (S151)
• Provide the 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)

Question 18

When can omissions of legal duty amount to homicide?

Answer 18

For the requisite causal connection, 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.

Question 19

Give an example of culpable homicide where both an unlawful act and omission to perform a legal duty exists (S160(2)(c))

Answer 19

A reckless driver killing a pedestrian is both an unlawful act (reckless driving) and an omission to take precautions when in charge of a dangerous thing (S156)

Question 20

What must you prove for a person to be guilty of culpable homicide under Section 160(2)(d), threats, fear of violence and deception?

Answer 20

You must prove that the fear was well founded, but you do not need to show that the deceased’s action was the only means of escape.

Question 21

In relation to S160(2)(d) threats, fear of violence and deception, what was held in R v Corbett?

Answer 21

The victims conduct must be such that it could be reasonably foreseen, is proportionate to the threat, or is within the gambit of reasonableness.

Question 22

R v Tomars (S160(2)(d))

Answer 22

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 in the defendants position at the time could reasonably have seen the consequences?
4: Did these foreseeable actions of the victim contribute in a significant way to his death?

Question 23

Examples of culpable homicide, threats, fear of violence or deception (160(2)(d))

Answer 23

• 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
• Has been assaulted and believed life is in danger, jumps from a train and is killed.

Question 24

Frightening a child or sick person under S162(2)(e)

Answer 24

The fright 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 was do e wilfully.

Question 25

Wilfully frightening?

Answer 25

Wilfully frightening is regarded as intending to frighten, or at least be reckless as to this.

The defendant must at least have been aware of a real risk that the victim was under 16 or sick.

Question 26

S163 Killing by influence on the mind.

Answer 26

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 27

Can a person consent to being killed?

Answer 27

S63. No one has the right to consent to being killed.

Question 28

If death occurs during lawful games or contests?

Answer 28

The death of a participant from injuries received during the game or contest is normally treated as non-culpable homicide, unless the death is caused by an act that is likely to cause serious injury (manslaughter).

Question 29

Proof of death.

Answer 29

Must prove;

• death occurred
• deceased ID as person who has been killed
• the killing was culpable

Death can be proved by direct and/or circumstantial evidence.

Question 30

R v Horry

Answer 30

Death should be provable by such circumstances as to render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Question 31

List acts resulting in death that are justified and exempt from both criminal and civil liability?

Answer 31

• Homicide committed in self-defence (S48)
• 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 (s41)

Use of force is limited to that which is reasonably necessary in the circumstances.

Question 32

Within what time frame does the death have to occur from the last unlawful act or omission?

Answer 32

S162 - death must have occurred within 1 year and a day.

this section was repealed March 2019 but is still in the module