Homicide Law Part 1

Question 1

Define Homicide

Answer 1

Homicide is the killing of one human being by another.

Before it can become the subject of a criminal charge, it must be proved that the killing was blameworthy or culpable.

Question 2

The two critical factors for murder

Answer 2

Whether the offender INTENDED to :

1. Kill the person, or
2. Cause bodily injury that the offender knew was likely to cause death

Question 3

When can you charge someone with manslaughter?

Answer 3

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.

Question 4

Burden of proof regarding intent

Answer 4

As the burden of Proof regarding intent rests with the prosecution ajury may return a verdict of manslaughter if it feels that intent or any other elements of murder have not been proved

Question 5

Murray Wright Ltd

Answer 5

Because the killing must be done by a human, an organisation (such as a hospital or food company) cannot be convicted as a principal offender.

Manslaughter - an organisation can be convicted as a party to the offence s66(1)

Murder - an organisation cannot be convicted as either a principal offender or party to the offence. This is because the offence carries a mandatory life sentence

Question 6

S159 CA 61

Answer 6

S159 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.

Question 7

S160 CA 61

Answer 7

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 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 S178 of this Act, culpable homicide is either murder or manslaughter.
4) Homicide that is not culpable is not an offence.

Question 8

R v Myatt

Answer 8

Before a breach of any act, regulation or bylaw would be an unlawful act under S160 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 9

Unlawful Act definition S2 CA 61

Plus discuss how it fits with S160(2)(a)

Answer 9

Unlawful Act - means a breach of any Act, regulation, rule or bylaw.

In relation to S160(2)(a) you must prove death was caused (at least in part) by the breach of an act, regulation, rule or bylaw.
However common law requires that the act must be one that is likely to do harm or is inherently dangerous, as well as unlawful.
Therefore a breach in electoral law would not suffice as it is not an act likely to cause harm to the deceased nor is it inherently dangerous.

R v Myatt

Question 10

List 6 duties imposed by statute in relation to S160(2)(b)

Answer 10

1. Provide the necessaries and protect from life S151
2. Provide necessaries and protect from injury to your charges when you are a parent or guardian. S152
3. Provide necessaries as an employer S153
4. Use reasonable knowledge and skill when performing dangerous acts such as surgery s155
5. Take precautions when in charge of dangerous things, such as machinery. S156
6. Avoid omissions that will endanger life. S157

Question 11

Unlawful acts and omissions of duty: S160(2)(c)

Give an example of

Answer 11

Sometimes both lawful acts and omissions 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 omission to observe your duty to take precautions when you are in charge of a dangerous thing.

Question 12

Threats fear of violence and deception:

s160(2) (d)

Answer 12

A person is guilty of culpable murder if they caused the victim by threats, fear of violence or deception to do an act that results in the victim’s death.

R v Tomars relates

Question 13

R v Tomars

Answer 13

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 the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a significant way to his death?

Question 14

Killing by influence of the mind

Answer 14

163 Killing by influence on the mind

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 a child aforesaid or a sick person.

Question 15

Consent to deatg

Answer 15

No one has the right to consent to being killed s63.

Question 16

Death from lawful games or contests

Answer 16

In the case of lawful contests and games e. G boxing, wrestling football ect. The death of a participant from playing the game is normally treated as non culpable homicide.

However if a contestant causes the death of another by an act that is likely to cause serious injury, they will be guilty of manslaughter.

Question 17

Proof of death

Answer 17

To establish death, you must prove the:

1. Death occurred
2. Deceased is identified as the person who has been killed
3. The killing is culpable

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

Question 18

R v Horry

Where body is not located

Answer 18

Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial ecidence 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 19

S162 Death must be within a year and a day

Answer 19

S162 Death must be within a year and a day

(1) no one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
(2) the period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3) where cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day in which such omission ceased.
(4) where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or The last omission ceased, whichever happened last.

This rule prevents indefinite liability for prosecution of culpable homicide after an assault.
A defendant will not be relieved of responsibility merely because a life support system is withdrawn in good faith, with the result that any possibility of survival for the statutory year and a day was lost.