Homicide Law - Culpable Homicide Flashcards
What are the critical factors to consider when deciding to lay 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.
Define Homicide
Section 158 CA1961 - Homicide is the killing of a human being by another, directly or indirectly by any means whatsoever.
What must Homicide be, to be considered an offence?
Culpable
Can an organisation be convicted of Murder?
No, an organisation cannot be convicted of murder, this is because murder holds a mandatory sentence of life imprisonment.
An organisation may only be convicted of parties to Manslaughter - Section (66)(1) CA1961.
What was found in the case law of Murray Wright Ltd?
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.
Outline what is said in section 159 Crimes Act 1961 in relation to killing of a child
Killing of a Child - Section 159 CA1961
(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.
What is the elements of Culpable Homicide S160 CA1961?
Culpable homicide - Section 160 CA1961.
(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 willfully 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.
What is the definition of Unlawful Act 260(2)(a)?
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 unlawful. The leading case which confirms this is cited below.
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.
What is R v Myatt
Before a breach of any Act, regulation or bylaw would be unlawful, it must be an act likely to do harm to the deceased or to some class of persons of whom they were one.
What is outlined in Section 150A CA1961- Standard of care applicable to persons under legal duties or performing unlawful acts
A person will be criminally responsible for an unlawful act if it is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
Section 150A applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.
eg. Providing care to vulnerable people, children, employees or doing a dangerous act of being in charge of a dangerous thing.
Give some examples of acts or omissions without lawful excuse to perform or observe any legal duty (sections 151 - 157 CA1961)
- provide the necessities and protect from injury (vulnerable adult) (s151)
- provide necessities and protect from injury to your charges when you are a parent or guardian (s152)
- provide necessities 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).
What needs to be proved for threats or fear of violence’s for section 160(2)(d)
That the fear of violence was well founded, but you don’t need to show the deceased actions were the only means of escape.
What is considered by ‘Frightening’ a child or sick person: s160(2)(e)?
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”, does not need to be a fear of voilence.
What is R v Tomars
R v Tomars relates to section 260(2)(d) - Threats or fear of violence and considers the following:
- Was the deceased threatened, in fear of, or deceived by the defendant?
- Did the threat, fear or deception cause the deceased to do the act that caused their death?
- Were the actions of the victim reasonably foreseeable by someone in the defendants position?
- Did the foreseeable actions of the victim significantly contribute to their death?
Proof of Death (Culpable) - To establish death you must prove what?
- The Death occurred
- The deceased is identified as the person who has been killed
- The killing is culpable
