Homicide related Offences

Question 1

What is infanticide?

Answer 1

Infanticide is defined in the act:
Section 178
(1) where a women causes the death of any child of hers under 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effects of giving birth to that or other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

Question 2

For infanticide prosecution what must the Killing of the child must amount to?

Answer 2

In cases of infanticide, the killing of the child must be in a manner that would amount to culpable homicide. As well as establishing that fact, you must prove the mother’s mind was disturbed as a consequence of the birth of that child or of another child. The term “as a consequence” includes the period of lactation.

Question 3

Who decides the mothers state of mind for infanticide?

Answer 3

If a woman is charged with murder or manslaughter, but the jury believes her state of mind is due to the effects of childbirth, the jury is required to return a special verdict of acquittal on account of insanity caused by childbirth. However, the prosecution may file charging documents for both infanticide and murder of an infant, and it is up to the jury to decide on the mother’s state of mind.

In charges of infanticide, it is for the jury to decide on the mother’s state of mind.

Question 4

What are the provisions of necessaries?

Answer 4

Sections 151, 152 and 153 concern the duty to provide those things and conditions necessary to sustain life and protect from injury. Death resulting from failure to meet the legal duty to provide the necessities of life and or protection form injury can amount to homicide.

151 Duty to provide the necessaries and protect from injury

152 Duty of parent or guardian to provide necessaries and protect from injury

153 Duty of employers to provide necessaries

Question 5

Duty to provide the necessaries and protect from injury

Answer 5

151 Duty to provide the necessaries and protect from injury
(1) Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—
(a) to provide that person with necessaries; and
(b) to take reasonable steps to protect that person from injury

Question 6

Duty of parent or guardian to provide necessaries and protect from injury

Answer 6

152 Duty of parent or guardian to provide necessaries and protect from injury
(1) Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury

Question 7

Duty of employers to provide necessaries

Answer 7

153 Duty of employers to provide necessaries
(1) Every one who as employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured, by such omission.

Question 8

What is a vulnerable person?

Answer 8

Means “a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person”.

This definition largely re-enacts the terms of the former s 151(1), with “mental impairment” substituted for the previous reference to “insanity” and the former expression “charge” replaced by “care or charge”.

Vulnerability may be short-lived or temporary. Whether an adult is vulnerable is a matter for objective determination and should not depend on that person’s subjective perception.

Question 9

What are Necessaries?

Answer 9

Under the former section 151(1) the corresponding duty was to provide the “necessaries of life” which encompassed commodities and services necessary to sustain life, such as food, clothing, housing, warmth and medical care.

There is no authority on what is meant by the concept of “necessaries” and may be regarded as a “somewhat broader concept” than “necessaries of life”.

Question 10

What is the Duty to protect from injury?

Answer 10

The duty imposed in the above sections is to take reasonable steps to protect a vulnerable adult or child from injury. In this context “injury” encompasses not only bodily harm directly caused by other persons but also harm arising from human activities and non-human sources.

Question 11

Legislation for Abandoning child under 6

Answer 11

154 Abandoning child under 6
Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years.

Note: Section 150A (Standard of care required of persons under legal duties or performing unlawful acts) does not apply to section 154.

Question 12

Duty of persons doing dangerous acts

Answer 12

155 Duty of persons doing dangerous acts
Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 13

Duty of persons in charge of dangerous things

Answer 13

156 Duty of persons in charge of dangerous things
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 14

What does “Anything whatever” mean?

Answer 14

Note that the term “anything whatever” in section 156 is extremely wide. It includes such things as motor vehicles, trains, animals, ships, weapons, machinery and explosives.

The term has even been held to include the machinery inside a mussel factory. Things such as scaffolding that collapses due to faulty erection and inspection, unfenced holes, or other “industrial-type” incidents may fall within the provisions of this section, depending on the circumstances.

Question 15

Duty to avoid omissions dangerous to life

Answer 15

157 Duty to avoid omissions dangerous to life
Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Question 16

Killing by influence on the mind

Answer 16

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 any such child as aforesaid or a sick person.

Question 17

Acceleration of death

Answer 17

164 Acceleration of death
Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.

Question 18

Causing death that might have been prevented

Answer 18

165 Causing death that might have been prevented
Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.

Question 19

Causing injury the treatment of which causes death

Answer 19

166 Causing injury the treatment of which causes death
Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

Question 20

R v Blaue background

Answer 20

R v Blaue13 provides a clear example of this piece of legislation in practice The victim [a Jehovah’s witness] had been stabbed but refused to accept a blood transfusion on the ground that to do so would be contrary to her religious belief; despite a warning that she would die, she persisted in her refusal and in fact died on the following day. The cause of death was bleeding into the pleural cavity caused by the stabbing. An appeal against a conviction of manslaughter, on the ground that her refusal to have a blood transfusion was unreasonable and broke the chain of causation between the stabbing and her death, was dismissed.

The Court commented; “…It does not lie in the mouth of the assailant to say that his victim’s religious beliefs, which inhibited her from accepting certain kinds of treatment, were unreasonable. The question for decision is what caused her death. The answer is a stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.”

Question 21

What happens When treatment of injury is fatal?

Answer 21

This provision covers situations where a person dangerously injures the victim and, as a result, treatment is administered to the victim, and that treatment is the immediate cause of the victim’s death. The person who caused the injury is liable for the injury and its consequences. The degree of that liability will rely on the mens rea element.

When treatment is sought for an injury and the injured person dies, the person who caused the original injury is liable for the death, even if the person has died as the result of improper treatment, so long as the treatment was applied in good faith. You also need to consider the liability of medical practitioners for failure to take care, as set out in s155, remembering however, that the test requiring gross negligence set out in s150A.

Question 22

Withdrawal of life support

Answer 22

In R v Tarei15 the Court held that the withdrawal of any form of life support system is not “treatment” under s166 Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.

Question 23

An injury must remain a substantial cause of the death

Answer 23

In this matter The English Court of Appeal stated two rules:
• death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury;
• in other circumstances, it is a question of fact to establish a causal connection between the death and the felonious injury;

In Jordan17, the treatment was not normal; two separate treatments were palpably wrong and the treatment was the direct and immediate cause of death. The conviction was quashed. The treatment was so unusual that it broke the causal chain. In legal terms, the defence of novus actus interveniens was upheld.

Question 24

Aiding and abetting suicide

Answer 24

179 Aiding and abetting suicide
Every one is liable to imprisonment for a term not exceeding 14 years who—
(a) Incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or
(b) Aids or abets any person in the commission of suicide.

Question 25

Suicide pact

Answer 25

180 Suicide pact
(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against section 179 of this Act.
(3) For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

Question 26

Concealing dead body of child

Answer 26

181 Concealing dead body of child
Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.

Question 27

What is a ‘child’ for concealing dead body of a child?

Answer 27

While the term “child” is not defined, the provision is evidently intended to refer to a child of comparatively recent birth.

The body must be dead when disposed of, although it is not necessary that the body should be found and identified.

If the child is alive when disposed of and subsequently dies, it may be murder or manslaughter or, in the case of the mother, infanticide.

Question 28

What must be done in terms of intent when concealing a dead childs body?

Answer 28

The requirement that the act of disposal must be done with the intent of concealing the fact of birth may be satisfied even though the birth was known to some people but not others. Thus it will be enough that the intent was to conceal the birth from a particular individual.