Homicide Offences

Question 1

What is homicide

Answer 1

Homicide is the killing of one human being by another. Before a homicide can become the subject of a criminal charge, it must be proved that the killing was blameworthy or culpable. If the act was culpable, you need to work out whether the act was murder, manslaughter or, less commonly, infanticide

Question 2

Murder or manslaughter

Answer 2

The critical factors to consider for a charge of murder are 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.

Question 3

Homicide Defined

Answer 3

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

Homicide must be culpable to be an offence

Question 4

Can an organisation be charged with Manslaughter

Answer 4

An organisation can be convicted as a party to the offence

Question 5

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 is a child a human being

Answer 6

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.

Question 7

What is culpable Homicde

Answer 7

Culpable homicide means the killing is blameworthy

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

Question 8

Unlawful Act

Answer 8

Section 2 Crimes Act 1961
Means a breach of any Act, regulation, rule, or bylaw.

Question 9

R v Myatt (Unlawful Act)

Answer 9

it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.

Question 10

Section 150A

Answer 10

Applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.

Question 11

In common law, allegations of culpable homicide have been supported where the offender has caused death by:

Answer 11

• 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 subsequently 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.

Question 12

Omission to perform legal duty: s160(2)(b)

Duties imposed by statute are mainly common law duties that have been embodied in statute. The Crimes Act 1961 defines duties to:

Answer 12

• 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).

Question 13

Unlawful acts and omission of duty: s160(2)(c)

Answer 13

Sometimes both unlawful acts and the omission 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 an omission to observe your duty to take precautions when you are in charge of a dangerous thing (s156).

Question 14

Threats, fear of violence and deception: s160(2)(d)

Answer 14

A person is guilty of culpable murder if they cause the victim by threats, fear of violence or deception to do an act that results in the victim’s death. You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape.

Question 15

Threats/Fear/DEception R v Tomars

Answer 15

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 people in the defendant’s position at the time could reasonably have foreseen the consequences?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?

Question 16

Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:

Answer 16

• 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.

Question 17

Frightening a child or sick person: s160(2)(e)

Answer 17

The fright need not be a result of fear of violence as under s160(2)(d), but may be caused by any act that frightens the child or sick person, so long as it is done wilfully.

Question 18

Killing by influence on the mind

Answer 18

Killing by influence on the mind alone is not a crime except as provided in s163. This would apply 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.

Question 19

Consent to death

Answer 19

No one has the right to consent to being killed (s63). This means that, if someone is killed, the fact they gave their consent will not affect the criminal responsibility of anyone else involved with the killing.

Question 20

Death from lawful games or contests

Answer 20

In the case of lawful contests and games (such as boxing, wrestling, football and hockey) 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.

Question 21

To establish the death, you must prove the:

Answer 21

• 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.

Question 22

Where a body is not located- R Horry

Answer 22

Death should be provable by such circumstances as 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 23

Exception of justification (non-culpable homicide)

Answer 23

Examples of such acts include:
* 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).

Note that use of force here is limited to that which is reasonably necessary in the circumstances.

Question 24

Death must be within a year and a day

Answer 24

162 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 the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on 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 omission ceased, whichever happened last.

Question 25

No indefinite liability

Answer 25

This arbitrary rule prevents indefinite liability for prosecution for culpable homicide after an assault, and the development of surgery and life support procedures has increased the chances of long delay before death

An 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.

Question 26

Culpable homicide is murder in each of the following cases

Answer 26

(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 as aforesaid, 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 any one.

Question 27

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:

Answer 27

(a) If he means to cause grievous bodily injury 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.

Question 28

Intent

Answer 28

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 29

If you are charging an offender with murder under s167 you must show that the defendant:

Answer 29

Intended to cause death or
Knew that death was likely to ensue or
was recklessly that death would ensue

If such intent is not present the offence is manslaughter unless it falls within the provisions of infanticide (section 178).

Question 30

Recklessness

Answer 30

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk

Question 31

R v Harney- Recklessnes

Answer 31

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen together with an intention to continue the course of conduct regardless of the risk

Question 32

To show that the defendant’s state of mind meets the provisions of s167(b), you must establish that the defendant

Answer 32

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

Question 33

R v Piri- Recklessness

Answer 33

Recklessness here involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under wither S167(b) or (d) must be more than negligible or remote. the accused must recognise a real or substantial risk that death would be caused.

Question 34

Killing in pursuit of an unlawful object:

Answer 34

R v Desmond (1868) 11 Cox CC 146
Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death.

Question 35

Parties

Answer 35

Section 66 CA61

(1)
Every one is a party to and guilty of an offence who—
(a)
actually commits the offence; or
(b)
does or omits an act for the purpose of aiding any person to commit the offence; or
(c)
abets any person in the commission of the offence; or
(d)
incites, counsels, or procures any person to commit the offence.`
(2)
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 probable consequence of the prosecution of the common purpose.

Question 36

Punishment of murder

Answer 36

Every one who commits murder is liable to imprisonment for life.

Subsection (1) is subject to section 102 of the Sentencing Act 2002.

Question 37

Effect of the Sentencing Act 2002

Answer 37

102 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.