What are the critical factors to consider for a charge of murder vs manslaughter?
whether the offender intended to (a) kill the person, or (b) 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.
What is the definition of homicide, s158?
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Can organisations be charged with murder or manslaughter?
Murder - no because the offence carries a mandatory life sentence.
Manslaughter - can be convicted as a party to the offence.
What is the case law regarding an organisations involvement in homicide?
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.
(Murray Wright Ltd)
When does a child become a human being, s159?
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.
What does culpable homicide mean?
It means the killing is blameworthy.
In what instances is the killing of a person culpable homicide s160(2)?
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.
What is the definition of an unlawful act?
means a breach of any Act, regulation, rule or bylaw.
What is the case law regarding requiring acts being likely to do harm?
Before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purposes of culpable homicide it must be an act likely to do harm to the deceased or to some class of persons of whom he was one. (R v Myatt)
When will be a person be criminally responsible for unlawful acts requiring proof of negligence or standard of care?
the person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
What is held regarding culpable homicide caused by omission to perform a legal duty?
If death results from any such omission the defendant may be convicted of manslaughter, provided there was sufficient fault, or murder if the defendant had the requisite mens rea.
What is the case law which formulates the issues around threats, fear of violence and deception?
- Was the deceased threatened by, in fear of or deceived by the defendant?
- If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
- Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendants position at the time could reasonable have foreseen the consequences?
- Did these foreseeable actions of the victim contribute in a [significant] way to his death?
(R v Tomars)
What is the definition of wilfully frightening?
is regarded as “intending to frighten, or at least be reckless as to this”.
What is the legislation regarding killing by influence on the mind, s163?
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.
What is needed to establish the death?
you must prove:
(1) death occurred
(2) deceased as identified as the person who has been killed
(3) the killing is culpable.
What is the case law where a body is not located?
Death should be proved 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.
(R v Horry)
What are some examples of “justified” non-culpable homicide?
- homicide committed in self defence
- homicide committed to prevent suicide or commission of an offence likely to cause immediate or serious injury