Homicide Law - Progress Tests Flashcards
What are the three main types of culpable homicide?
- Murder
- Manslaughter
- Infanticide
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 of these intentions can be proven, the most likely charge is manslaughter.
Can an organisation (as opposed to a human being) be convicted of murder or manslaughter? Explain your answer.
No. Because the killing must be done by a human being, an organisation cannot be convicted as the principal offender. Moreover, although an organisation can be convicted as a party to manslaughter, with murder an organisation cannot be convicted as either the principal offender or a party to the offence because it is not possible for an organisation to serve the offence’s mandatory life sentence.
When does a child become a human being?
Section 159, CA61:
(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 naval 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.
When is homicide culpable?
Section 160, CA61:
(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 of 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.
What does common law require the act of culpable homicide to include?
- Death was caused by an unlawful act
- The act must be one that is likely to do harm or is inherently ‘dangerous’
What does it mean by ‘legal duty’ under s160(2)(b), and what are some examples?
Refers to those duties imposed by statute. Examples include:
- 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)
When can an omission of legal duties amount to homicide?
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”.
What is outlined in s163 CA61?
Killing by influence on the mind
No one is criminally responsible for the killing of another:
- By any influence on the mind alone; or
- By any disorder or disease arising from such influence
Except by wilfully frightening a child under the age of 16 years or a sick person
What is required for proof of death?
To establish the death, you must prove the:
- Death occurred
- Deceased is identified as the person who has been killed
- The killing is culpable
Death can be proved by direct and/or circumstantial evidence.
What are two examples of when some acts are ‘justified’ even when they result in death (non-culpable homicide)?
Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability, for example:
- 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 anyone (s41)
Other non-culpable homicides are protected from only criminal responsibility.
What is the legal view of consent to death?
The law does not recognise the right of a person to consent to their being killed (s63 CA61). As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.
Would you be charged with any offence if you fatally injured another player during a rugby match? If so, what might the charges be?
The death of a participant from injuries received during the game or contest 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.
What is outlined in s167 CA61?
Section 167, CA61:
(1) Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not
(c) If the offender means to cause death, or, being so reckless, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone
What is outlined in s168 CA61?
Section 168, CA61:
(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
(a) If he means to cause GBH for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, 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
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof
(c) 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.
If you are charging an offender with murder under s167, what three components of intent must you prove?
- Intended to cause death, or
- Knew that death was likely to ensue, or
- Was reckless that death would ensue
If such intent is not present, the offence is manslaughter unless it falls within the provisions of infanticide (s178).
What must you establish to show that the defendant’s state of mind meets the provisions of s167(b)?
- 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 is outlined in s66(2) CA61?
Parties to offences
(1) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probably consequence of the prosecution of the common purpose.
The secondary party must know the principal party might do the act that causes death.
What is regarded as joint responsibility regarding s66 and s168?
It is not necessary to show that the secondary party knew that death was a probable consequence of their carrying out the primary purpose.
Rather it must be shown that the secondary party knew it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of s168.
What is outlined in s172 CA61?
Punishment of murder
(1) Every one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002.
What is outlined in s102 of the Sentencing Act 2002?
Presumption in favour of life imprisonment for murder
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
What does Section 72(1) CA61 involve?
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What does Section 72(2) CA61 involve?
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, it s a question of law.
