Omissions Flashcards
Lecture notes:
Omissions.
Black letter law → Fundamental rules of the law.
Starting off with general principles.
What we will look at in this topic:
•Introduction and overview of omissions
•Why we are reluctant to criminalise omissions – the rationale behind this area of the law
•A brief introduction to family violence (to assist you in understanding the failure to protect cases)
•The duties – duties based on relationship
•The duties – duties based on dangerous activities, things or a relationship with the harm
•Breaching the duties – standards of care
•Common crimes which can be based on omission
First Overview of how omissions work
Then the rationale behind the law. → helps to understand the law if you know the reasoning behind it.
Then a brief introduction to family violence → many cases involving vulnerable adults or children take place in the context of family violence. For example → failure to protect cases.
Then duties. → First duties as to particular relationship with someone.
Then duties based on the fact you are engaged in dangerous activity or when you have a particular relationship with the harm.
Then what standard is required to breach the duties → Can’t just have a duty you have to breach it.
Standard required to have a duty breached.
Then some crimes which typically are based on omissions. → range of them.
Introduction and overview:
Big picture view:
Intro and overview.
Crimes are generally based on actions:
•Usually before a person can be liable for a crime they must have performed an action in a way that satisfies the actus reus for an offence (with the proscribed state of mind).
•Omissions - that is, failures to act - are an exception to this.
Generally crimes are based on actions → things that people have done.
The action has to fit within the actus reus for a particular offence.
Can’t be criminally liable for things you haven’t done.
Generally actions you have taken and are not when you do nothing.
Criminal liability based on holding liable for actions taken not when doing nothing..
When speaking about omissions it is an exception to this general rule → hold liable for not doing anything.
The general principle:
We only criminalise failures to act when —>
There is a legal duty to act (or act in a certain way)
The person does not act (or act in the specified way)
The failure to act forms part of a crime
—>
One cannot be criminally responsible for doing nothing unless one has a specific legal duty to do something
—>
See R v Chilton (2005) 22 CRNZ 686 the “fundamental principle” is “that an omission cannot be operative at law unless there is a corresponding duty to act” (page 699)
To hold someone liable for doing nothing → have to find they have an obligation to do something that they breached.
Have to find → legal obligation to act and they didn’t act. —> and failure to do this satisfies an actus reus for a crime.
Case of Chilton → Court said the fundamental principle is that an omission cannot be operative at law unless there is a corresponding duty to act.
Only way you can hold people accountable is if they had a legal obligation to do something for omissions. Because of general rule that you criminalise people only for doing things/actions.
General sorts of duties at criminal law:
Duties arising out of a specific relationship to the victim: ss 151-152, Crimes Act 1961
Duties imposed on people assuming particular responsibilities for dangerous things or activities: ss 155-157, Crimes Act 1961
Duties imposed on people having a particular relationship with the harm: Common law ( R v Lunt [2004] 1 NZLR 498)
Generally three sorts of duties that are imposed in the criminal law → the ones that the cases are based on.
First → duties that arise arise out of having some kind of relationship with the victim → Special relationship which gave you an obligation to do something.
The two that exist in the Crimes Act are:
One: when you are a parent of a child → as a parent you have obligations towards a child when they are below a certain age, and you have obligations because the child is helpless and dependant on you.
And: When you are talking about a vulnerable adult who cant look after themselves and you have assumed some caregiving relationship with them → can give rise to obligations.
Also in the Crimes Act → you can also have an obligation to act when you undertake certain sorts of dangerous activities which could cause danger to someone else’s life.
Those duties set out in S155 to 157 of the Crimes Act.
And also common law duties → Section 9 of the Crimes Act says you cant be convicted of a common law crime.
So before you convict, find a legislative offence in an NZ act → But Lunt said that duties are not crimes.
Duties are not crimes → so they still survive in common law.
So can still find common law duties. → might not find duties in crimes act buy may find duty in the case law.
Section 9 of the Crimes Act does not apply to duties.
Duty → just beginning of establishing that failure to do something registered legally.
Then have to go on and prove a crime.
Where do duties to act come from?
•Contract
•Voluntary agreement
•Law
•Legislation
•Case law
They come from → mostly come from the Crimes Act.
Some come from the common law. → Some are common law based.
Some duties arise automatically → for example if you have a child, you are automatically by law given those obligations to your child, just by virtue of having this relationship, by virtue of being a parent.
Some arise by contract or voluntary agreement.
Vulnerable adults → Don’t automatically have a duty to your parent just because they are vulnerable, you have to assume an obligation to care for that person, even if its your parent, before the duty arises.
Some duties are based on you undertaking a certain relationship or obligation.
How do we justify imposing these duties to act?
The duties in NZ arise because:
•The person has entered the relationship or undertaken the activity and therefore is put on notice of their responsibility.
•There is a risk to someone else.
•
Rationale for not holding people accountable for doing nothing generally. → But exceptions to that rule and justification for duties is:
There is a serious risk to someone else,
And the person → The defendant has entered a certain sort of relationship or undertaken a certain activity and is therefore put on notice that they have obligations and that there is a risk to someone else.
Not just wandering around in the world and then a random obligation to do something. They are put on notice.
There is no general duty to be a good samaritan for example.
Important!
•For criminal liability it is never enough to prove an omission. The omission must also form part of the actus reus for a crime in which all of the other actus reus and mens rea elements have also been met on the facts.
•Must be a duty
•Must be a breach of the duty
•That breach must form part of the actus reus for a crime
•All of the other elements of the crime must be satisfied
An important thing to notice →
Not enough for criminal liability just to prove that there is a duty to act and that there is a breach of that duty.
After that breach of duty is found → once you have proven that they have breached an obligation so their failure to do something registers. → Must then go on to prove that that omission satisfied the actus reus components for a crime that the other actus reus components for that crime were satisfied and the offender had the relevant mens rea.
Have to have duty, breach of duty, breach forms part of actus reus, and all other elements of crime were satisfied.
Just because failure to act → Does not make them criminally liable automatically → But there are always exceptions.
Exceptions…
•There are some crimes that both create a duty to act and a crime in one:
•Eg failure to take a breath test
•Eg s 195A
There are exceptions to this.
A Few crimes which both create a duty to act and criminalise it in one piece of legislation.
For example failure to take a breath test.
That offence failure, also creates an obligation if requested to provide a breath test to cooperate.
Section 195A → Another example of creating an obligation to act, and criminalises a failure to act in one piece of legislation.
But generally sections 151 to 157 → create duties with no offence attached to them and you then once proven breach of duty must fit it into legal offence.
Section 145, Criminal Nuisance:
(1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he or she knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.
(2) Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding 1 year.
Example of an offence where → it is quite clear from the terms of the offence that an omission is criminalised.
Section 145 Criminal Nuisance → Creates a minor offence (max penalty of 1 year).
And subsection 1 creates the offence → everyone commits criminal nuisance who does any unlawful act → or omits to discharge any legal duties.
An act or omission that he or she knew would endanger the lives safety or health of the public, or of any individual. → Breach a duty knowing you are running a risk to lives safety or health, public or individual. (subsection 1).
Clear omission can be a criminal nuisance.
Unlawful act → something that is prohibited by law
Section 2 defines “assault”:
•assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning
Some offences may not be able to be committed by omission.
Argument about whether assault can be commited by omission.
Assault → physical contact without consent, or threatening to make conatact without consent, knowing you dont have consent.
Assault defined in s2 of Crimes Act → Assault means the act of intentionally applying to attempting to apply force to the person directly or indirectly, or threatening by act or gesture to apply such force.
If person making threat has or causes the other to believe on reasonable grounds that he has present ability to effect his or her purpose.
Argument as to whether can commit assault by an omission → for example legal duty to stop something contacting someones body without permission, could it be an assault?
Some say no → legislation clearly requires an act, clear you cannot have by an omission.
Others have argued → interpret legislation in the context, in some legislative context act could mean act or omission.
But we dont know what the answer is to this question.
Duties are inculpatory not exculpatory:
Section 150A, sections 155-157
R v Falls Unreported Supreme Court of Queensland, 3 June 2010
Another important thing to note.
Duties are inculpatory not exculpatory.
Inculpatory → Can use a duty to make someone liable but can’t use a duty as an defence to argue that even though they have committed offence they are not liable.
Can bring someone into the criminal law it cant take someone out of the criminal law.
Inculpatory → bring them in..
Exculpatory → Act as a defence to take them out (duties to act cannot do this).
This point was made in the Queensland case of Falls (Aus)
In this case the defendant had killed her violent partner. She ground sleeping pills into his curried prawns.
Knew kids don’t like curried prawns so he would be the only one eating the meal.
Man passed out then shot him point blank in the head.
She then disposed of his body and pretended he had gone missing
You would think she would be convicted of homicide.
But she was completely acquitted on the basis of self defence.
At the time he was threatening her → long history of horrific violence by him.
But man also threatening to kill one of their kids and that was the trigerring point for her.
Was psychologically torturing her by taking her to gravesites and made her pull names out of hat of children, and youngest son come out of the hat. And said he would kill him on her mothers birthday to ruin mothers and her life.
So her Counsel tried to argue that because she had a duty to her child that could be a defence to the charge of homicide of her partner.
Because he was threatening her child. She had an obligation/duty to protect her child from injury.
So therefore the duty could be argued as the defence.
Justice Applegarth said No → duty to protect child was inculpatory if she breached it she could come into the criminal law. But NOT an independent defence.
But she went on and successfully argued in front of the jury the defence of self defence.
Unusual because victims in these circumstances are not generally successful with self defence.
But can also see when you look at the wording of the offences which create the duties → that the provisions are inculpatory.
For example section 150A → which applies to all legal duties set out in sections 151 to 157 of the Crimes Act.
Sets out the standard of care the person must fail before they can be held criminally responsible for omitting to discharge or perform a duty → making it clear that the duties are about making people criminally responsible not providing defences from criminal responsibility.
And also references in section 155 to 157 to a person being criminally responsible for the consequences of breaching a duty.
No language of justification or excuse → suggesting that they don’t create defences.
The rationale underlying omissions liability:
•Are people who do nothing to prevent harm, less culpable than people who do actions that cause harm? (Non-savers versus killers)
Now the rationale which underpins this area of law.
Why don’t we hold people liable for doing nothing?
Why do we insist that they have to do something to make them criminal → with the exceptions above of course.
Some people think there is a moral difference between doing something that harms someone and not doing something → just failing to stop someone being harmed.
For example → There is a perception that people who do nothing to save a child from drowning, and they do nothing → Some people suggest that this is not the same thing as deliberately drowning the child.
Non savers vs killers.
Stephen, history of criminal law in England:
•“A number of people who stand around a shallow pond in which a child is drowning and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child.”
Notion that there is a fundamental moral distinction between someone who causes something to happen and someone who just stands by passively and observes it without stopping it.
Famous Quote from Stephen → a number of people who stand and let the child drown in a pond without taking the trouble to ascertain the depth of the pond are no doubt shameful cowards but can be hardly said to have killed the child.
Underpinning the perception is this idea that has segued into a different era of time.
Nowadays we think if someone has done something wrong there should be a criminal offence.
But when Stephen was writing there was a sense that we reserve the criminal law for our most serious social harms. Did not reserve them for lesser social harms.
Was our really serious accountability measure.
Many harms that we don’t criminalise, infidelity, lying in certain situations, selling people cigarettes, alcohol.
Lots of harms are allowed. → lots of things morally wrong but we won’t criminalise them.
There was an era which we thought things morally wrong but wont criminalise them. → this thinking informs them.
Moral distinctions. Would morally condemn you if stand around pond watching child drown → But are you criminally accountable for what happened?
You have no obligation, assuming that the child is not yours, if child is yours you have obligation.
Moral difference between doing nothing, and being the cause of the harm.
Second justification for making distinction between doing something and doing nothing is below.
Criminalising doing nothing:
•Constrains individual autonomy and freedom
•Is intrusive
•Potentially very broad scope
•Criminalising an omission is ordering someone to act on pain of onerous criminal consequences.
•At any one moment I am not doing 100,000 things but probably only doing one or two things.
•Libertarian notions of the social contract: give up your right to predate on other people but still sovereign in your own private sphere.
Justification for making distinctions.
The idea that if we start criminalising omissions we are making inroads into peoples autonomy as human beings. → That we all have individual choice and autonomy, and criminalising doing nothing is incredibly intrusive on that.
Makes the scope of criminal liability exceptionally wide in a way that criminalising actions does not.
Because of the inherent difference between doing something versus doing nothing.
When actions are criminalised → everyone is put on notice that you are not allowed to do those actions, you can do everything else in the world just not those actions.
So have a huge realm of things you can still do → freedom.
Entitled to act in any other manner, so that narrows peoples options down only in a very general and residual manner → leaving them with a huge amount of freedom.
BY contrast when criminalising omissions → a person is obligated to act in a particular way
Must do that action on pain of criminal consequences → and that may reduce a persons options to one, a requirement to perform a certain act now.
So far more intrusive on a persons autonomy and freedom.
Furthermore, at any point in time a person is not doing thousands of things, but only one thing they are doing. Doing this now → 1 million other things i’m not doing.
So scope for expanding criminal liability with all its punitive consequences is far broader once omissions start to be criminalised.
Concepts of autonomy and individual freedom → Core rights, principles, and values in a libertarian democracy → So we try and protect them.
For example outrage about compulsory vaccinations → reflection of how much we value individual choices and freedoms, and how much we resent giving that up for the well-being of other people.
Brookebanks → draw on both these reasons, limited causal responsibility for the wrong, and enhanced intrusion into personal autonomy.
When they say wholesale liability for omissions would force us to constantly interrupt our own actions and plans in order to prevent outcomes that are brought about by others.
To become in effect our brothers keepers.
They argue → if we criminalise omissions we are really not recognising the fact that people are entitled to act in their own self interest → not obliged to act in the interests of others.
Core part of this idea of autonomy and freedom which is so important.
Some argue that society is based on an implicit social contract, not something we overtly negotiate but a famous justification for society → we become part of society and give up certain freedoms in exchange for being provided a space of safety and autonomy from being intruded upon by others.
Give up the right to predate on others, but in return we are provided protection from people predating on our self interests.
But it is a vision of freedom → im obliged not to do certain things that hurt other people, but in exchange I have my sovereign little space where i can be whoever i want no body can intrude on it, and i can be as selfish as i want.
As long as im not doing the actions that hurt other people → I am still my sovereign individual.
Andrew Ashworth:
•“whereas the criminalisation of wrongful acts narrows people’s options only in a general and residual manner, leaving a large area of freedom of action, the criminalisation of omissions may reduce a person’s options to one – a requirement to perform a certain action now – and is thus far more intrusive upon individual autonomy and freedom than is the prohibition of acts’”.
Andrew Ashworth → criminalising wrongful acts narrows peoples options only in general, omissions reduce a persons options to one, and thus more intrusive on individual autonomy and freedom than is the prohibition of acts.
BUT….. Below
But…..
•Most duties are conditional and of temporary duration (in contrast to prohibitions on positive actions which always apply).
Provide some caution around the above idea.
Most duties are very conditional, and are of temporary duration.
In contrast prohibitions on positive actions always apply.
So saying distinction isnt as sharp as we think.
For example obligation to child if parent are only obligations to act while i have relationship with dependent child and only to avoid harm to that child → can do anything else i want.
As soon as child is grown up there are no further obligations.
So not like this is a truly onerous intrusion on my freedom.
On the other hand, i have an obligation not to assault anybody forever.
Ashworth:
•The “case for omissions liability is strong where life or another fundamental interest is at stake; where someone has the opportunity and capacity to protect those interests; where protecting those interests is urgent; and where taking action will not sacrifice more important interests.”
So he is saying that the intrusion is potentially not as much as an intrusion as people make out.
Even if it is an intrusion, there may be counter reasons for nonetheless criminalising failures to act even if they are intrusions on a person’s personal freedom.
Argues that the case for omissions liability is particularly strong where life or another fundamental interest is at stake.
Where someone has the opportunity or capacity to protect those interests.
Where protecting those interests is urgent.
And where taking actions will not sacrifice more important interests.
Even if criminalising omissions is an intrusion there may be good reasons for intruding on personal autonomy → for example to protect other peoples lives for example.
For example also → Went into decision to force people to do vaccinations → We have obligations to do something sometImes to preserve other peoples lives, what we do has an impact on other maybe more significant interests.
The line between actions and failures to act → when you read all this rationale you think it’s quite rigid.
In actuality when you look at the duties the lines between what are actions and what are failures to act get more blurry in real life.
Some things can be both unlawful acts and failures to act.
There’s an overlap → particularly when you look at the duties that are set out in sections 155 to 157 → duties around dangerous activities.
You have an obligation if you do a dangerous activity. Example might be driving a car → a dangerous thing.
When driving, have an obligation to take reasonable steps to drive in such a way that doesn’t threaten other people’s lives.
That is also potentially negligent driving → which is an act.
So some of the duties are really not obligations to do something where you are doing nothing. Obligations where you have already taken an action, just obligations to take that action in a careful manner.
So those could be characterised as failing to be careful or acting carelessly.
So the line between the two is a little bit blurry in respect of different kinds of duties.
A duty of easy rescue?
Some people think its a bit disgusting that the duties are so narrow. → they think we should expand them and have a more caring society.
Where you do have obligations to act for other people.
Debate around this.
We don’t have a duty that you are obliged to rescue someone just because you easily could.
Most people on the other hand if they can easily rescue another they instinctively will.
People can be incredibly heroic acting in the interests of perfect strangers who are in danger.
The concern about expanding the duty to wide → criminalising people if they dont act in this heroic way is how far these obligations may go.
For example people who live comfortable lives, we have more money than we need for necessities, would we be obliged to give money away to those who don’t have enough to live on.
IF you expanded the obligation to rescue other people, it may extend into other areas that it currently doesn’t.
So don’t have a duty to be a good samaritan at this point → can be as selfish as you want with your money for example.
And if you don’t have a particular relationship with somebody that you see drowning you can stand by and watch them drown even if you are a perfectly good swimmer and you can rescue them.
As long as you don’t have a special relationship with them that obliges you to act.
Northern territory criminal code:
155 Failure to rescue, provide help, &c.
•Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of an offence and is liable to imprisonment for 7 years.
There are some jurisdictions that do have duties of easy rescue → Northern territory.
Contained in section 155 of the northern Territory Criminal Code. → provides that any person who been able to provide rescue, resuscitation medical treatment, first aid or secure…..
If you find someone who you could easily be rescued and life is in danger and you dont in northern territory they have criminalised a failure to do that.
In NZ we have NOT.
Specific duties in the Crimes Act:
Correct and up to date way of correcting partner violence. ⇒ Some specific duties in the crimes act.
General Obligations to the act: The Crimes Act 1961:
Duties arising out of a specific relationship to the victim.
Duties imposed on people assuming particular responsibilities for dangerous things or activities.
Duties imposed on people having a particular relationship with the harm (common law?).
Three kinds of duties.
Duties arising out of a specific relationship with the victim.
Duties imposed on people assuming particular responsibilities for dangerous things.
And common law duties → imposed on people having a particular relationship with the harm.
We are going to start with the first type of duty → Arising out of a special relationship with the victim Below…
Duties based on a special relationship:
A Special relationship with the victim:
•If you take charge of a vulnerable adult you are under a duty to provide them with the necessaries of life (s 151). You are also under a duty to “take reasonable steps” to protect them “from injury.”
•If you are the parent or guardian of a child you have an obligation to provide them with the necessaries of life (s 152). You are also under a duty to “take reasonable steps” to protect them “from injury.”
There are two of these.
The first can be found in section 151 → if you take charge of a vulnerable adult, you are under a duty to provide them with necessaries of life, and also take reasonable steps to protect them from injury. → This is the first duty under section 151.
The second duty is in 152 → If you are the parent or guardian of a child you have an obligation to provide them with necessaries of life, and also under a duty to take reasonable steps to protect them from injury.
These two both follow a similar structure.