Homicide - Short Answers

Question 1

Define Homicide

Answer 1

S158 CA ‘61

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

Question 2

When can a child be murdered

Answer 2

S159 CA ‘61
Section 159 defines when a child becomes a human being and is therefore capable of being murdered under section 158

Section 159 CA ‘61
(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 independent circulation or not, and whether the naval string is severed or not

(2) The killing of a child is homicide if it dies in consequence of injuries received before, during or after birth

Question 3

Define Culpable Homicide

Answer 3

Culpable Homicide means the killing is blame worthy. It includes murder, manslaughter or infanticide. Section 160 defines what constitutes culpable homicide:

S160 CA ‘61

(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 death, or
(e) By wilfully frightening a child under the age of 16 years or a sick person.

Question 4

What is R v Myatt and give examples of acts resulting in culpable homicide

Answer 4

R v Myatt
Before any breach of Act, regulation or bylaw would be an unlawful act under section 160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some other class of persons of whom he was one

Examples
In common law, allegations of culpable homicide have been supported where the offender has caused death by
- Committing Arson
- Giving a child an excessive amount of alcohol to drink
- Placing hot ciders and straw on a drunk person to frighten them
- Supplying heroin to the deceased
- Throwing a large piece of concrete from a motorway over bridge into the path of an approaching car
- conducting an illegal abortion

Question 5

Define duties and give six examples

Answer 5

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

• 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)

Question 6

What is the case law is regards to Threats and fear of violence and Deception 160(2)(d)

Answer 6

R V Tomars

Formulates the issues in the following way:

1. Was the deceased threatened by, in fear of or deceived by the accused?
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 accused, in the sense that reasonable and responsible people in the accused’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 7

What are examples of Culpable Homicide caused by actions prompted by threats, fear of violence or deception

Answer 7

Examples are when a person:

• Jumps or falls out of a window 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 8

Define Killing by influence of the mind

Answer 8

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.

Section 163 CA ‘61
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 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 9

What is required to prove death?

Answer 9

To establish death, you must prove:

• The death occurred
• The 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 10

Explain exemptions of justification (Non-culpable homicide) and provide two examples

Answer 10

Note that some acts are justified even when they result in death. Section 2 provides that when an act is justified the perpetrator is exempt from both criminal and civil liability

Examples of such acts include:

• Homicide committed in self defence (Section 48)
• 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 (Section 41)

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

Question 11

Explain Section 162 - relating to the time death must occur

Answer 11

Section 162 CA ‘61

(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 the 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.

Question 12

Can an organisation (as opposed to a human being) be convicted of murder or manslaughter?

Answer 12

No.

Murray Wright Ltd
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.

Question 13

Section 160 of the Crimes Act 1961 defines what constitutes culpable homicide. What are the five ways set out in subsection (2) of this section?

Answer 13

(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 death, or
(e) By wilfully frightening a child under the age of 16 years or a sick person.

Question 14

What is the legal view of consent to death?

Answer 14

The law does not recognise the right of a person to consent to their being killed (S63 CA ‘61). As a consequence, their consent does not affect the criminal responsibility of anyone else involved in the killing.

Question 15

Is a body required to prove the death of a person? Explain your answer with reference to caselaw

Answer 15

No a body is not required to prove death of a person has occurred.

R v Horry
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 that facts be accounted for.

Question 16

Would you be charged with any offence if you fatally injured another player during a rugby match? If s, what might the charges be?

Answer 16

Normally you would not be charged with the killing of another rugby player if they died from injuries caused while playing football. However, you would be guilty of manslaughter if your actions were considered likely to cause serious injury, as you should have been aware of this at the time and refrained from this action.

Question 17

Define the offence of Murder S167

Answer 17

Sections 167 and 168 define the offence of murder

S167 CA ‘61
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 as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed:
(d) if the offender for any unlawful object does an act that he or she knows to be likely to cause death, and thereby kills any person, though he or she may have desired that his or her object should be effected without hurting any one.

Question 18

Define the offence of Murder S168

Answer 18

(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 or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), 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 or she administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
(c) if he or she 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 19

Define R v Murphy

Answer 19

R v Murphy

When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill

Question 20

What is the test for proximity with respect to an attempt?

Answer 20

The test for proximity is:

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?

Question 21

What is the sentence for Attempted murder?

Answer 21

Section 173 CA ‘61

Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years

Question 22

Define Accessory after the fact to murder

Answer 22

Section 176 CA ‘ 61

Everyone is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder

Question 23

What is the caselaw R v Mane

Answer 23

R v Mane

For a person to be an accessory the offence must be complete at the time of the criminal involvement

Question 24

Define Involuntary manslaughter

Answer 24

Involuntary manslaughter covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been non intention to kill or cause grievous bodily harm.

Question 25

What should you consider when you investigate a killing in a sudden fight

Answer 25

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

• Self Defence
• The requisite mens rea for a murder charge

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

• If homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an acquittal
• If the fact there was a fight negates that the accused had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter.

Question 26

If an offender intends to kill A but inadvertently strikes the fatal blow to B, is the offender still guilty of murder?

Answer 26

In a case where an offender intends to kill A but inadvertently strikes and kills B, the guilt of the offender is not affected. Section 167(c) states that if the offender means to cause the death of one person and by mistake or accident kills another, even though he did not mean to hurt the other person , then it is murder

Question 27

In a charge of attempted murder, what is the Crown required to prove?

Answer 27

When a charge of attempt to murder is made, the Crown must establish the mens rea and actus areas as set out in s72 of the Crimes Act 1961. An intention to kill must be proved

Question 28

Define voluntary and involuntary manslaughter

Answer 28

In voluntary manslaughter, mitigating circumstances (such as a suicide pact) reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.

Involuntary manslaughter covers those types od unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm

Question 29

When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?

Answer 29

When you are considering what charge to file after someone has been killed in a sudden fight, you need to consider whether there was:

• Self Defence
• The requisite mens rea for a murder/manslaughter charge

Question 30

Define Infanticide

Answer 30

Section 178 Crimes Act 1961
(1) Where a woman causes the death of any child of hers under the age of 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 effect of giving birth to that or any 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 it liable to imprisonment for a term not exceeding 3 years.

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

Question 31

Define abandoning a child under 6

Answer 31

Section 154 Crimes Act 1961
Everyone is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years

Question 32

What is R v Blaue

Answer 32

R v Blaue

Those who use violence must take their victims as they find them.

Liability depends on the mens rea no on the victims subsequent actions

Question 33

Define a suicide pact

Answer 33

Section 180 CA ‘61

(1) Everyone 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 themselves, 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 any office 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 pursuant of the pact.

Question 34

Define concealing dead body of a child

Answer 34

Section 181 CA ‘61

Everyone 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 dies before or during, or after birth.

Question 35

s151 and s152 list the legal duties regarding providing those things and conditions necessary to sustain life and protect from injury. Outline the provisions

Answer 35

Legal duties regarding provision of the necessaries and to take reasonable steps to protect that person from injury apply to those having actual care for charge of people who are vulnerable adults or, in the case of a parent or a person acting in the place of a parent having actual care or charge of child under 18 years

Question 36

What types of things fall into the category of dangerous thing discussed in s156 of the Crimes Act 1961?

Answer 36

Section 156 of the Crimes Act 1961, sets out the statutory duty of people in charge of dangerous things to take reasonable precautions to ensure people’s safety. Such things include motor vehicles, trains, animals, ships, weapons, machinery or explosives, and may include such things as the machinery inside a mussel factory, faulty scaffolding that collapses because of faulty erection and inspection, unfenced holed or other industrial-type accidents, depending on the circumstances

Question 37

In one incident a man stabs a woman repeatedly; the same thing happened in another incident involving a different man and woman. As a result, both women need to undergo emergency surgery during which both die of heart failure. The first woman suffers heart failure in an unpredicted reaction to the anaesthetic, whereas the second woman, although she suffers the same reaction and with the same result, wears a medic-alert badge carrying information about her known heart condition and retain to anaesthetic. Is there a difference in these cases? Is anybody held legally responsible for either of their deaths? If so, who, and what would the charge be?

Answer 37

If a woman is stabbed repeatedly and, during emergency surgery in relation to those wounds, dies of a heart attack where all reasonable precautions have been taken, the person who stabbed her initially and not the medical staff are responsible for her death. The degree of liability depends on the element of the mens rea and whether the attack was provoked. However, of the woman was wearing a medic-alert bracelet the described her heart condition and her reaction to anaesthetic, and the anaesthetist failed to notice it, the person who did the stabbing would not be culpable and the anaesthetist’s actions would need to be scrutinised under the provisions of s155 of the Crimes Act 1961 (Duty of person doing dangerous acts) to evaluate their responsibility. Simply, the death need to be a direct result of the initial attache and not related to some other condition

Question 38

Is a person who helps another person commit suicide criminally liable for their action? Explain your answer

Answer 38

Because the law does not recognise a person’s right to consent to death, people who help another to commit suicide or who are part of a suicide pact but survive are responsible for the other person’s death. In such cases the surviving person is charged with manslaughter

Yes they are criminally liable

Section 179 makes it an offence for a person (Person A) to assist another person (Person B) to commit suicide without any intention of Person A committing suicide themselves. For example, when a terminally ill person (Person B) asks their partner to help them commit suicide and their partner (Person A) does. Person A would be liable for aiding and abetting suicide, which has a maximum penalty of 14 Years imprisonment

Section 180(1) makes it an offence to enter into a suicide pact, and only one person dies as a result of an action by another person. For example if Person A and Person B enter a suicide pact, and Person A shoots Person B, before shooting themselves, but Person B lives. Person B would only be guilty of manslaughter, and not murder

Question 39

Define the General Admissibility of hearsay statements

Answer 39

Section 18 EA ‘06

(1) A hearsay statement is admissible inane proceeding if-
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either -
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

Question 40

What are the provisions of the Criminal Procedure Act 2011

Answer 40

A statement taken from a person who is dangerously ill can be presented as evidence to court if they are dead at the time of the hearing and reasonable assurance of the statement’s reliability can be shown.