Homicide Flashcards
What is Homicide?
Killing, lawful or unlawful by one - s 270. Unlawful is the offence. Unlawful is the absence of self-defence. Lawful is in self-defence. Examples of unlawful killings: murder and manslaughter. We look at assault causing death, which is NOT a killing.
What does proscribed mean?
Forbidden by law.
What is a human being?
man, woman, child, member of species to which man and women belong.
Life and death?
Birth, death, morality. Is a foetus a human being?
R v Hutty [1953] VR 338
Child is alive must be born and blood circulation and doesn’t have to be breathing. Can be a delay. If killed prior to being born, no case of murder or manslaughter. But others: non-fatal, non-sexual offences.
R v Iby (2005) 63 NSWLR 278
Extended the definition of life such as evidence of a heartbeat being sufficient to satisfy the common law born alive rule. There is no need for baby to manifest an ability to breathe by itself. When CL began there were less saving possibility. Evolved with science.
s 269 : when a Child becomes a human being:
A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel string is severed or not.
Interpretation Act 1984 (WA) s 13C (Linked to when alive.)
13C When death of person occurs
For the purposes of the law of this State, a person dies when there occurs -
a) irreversible cessation of all function of the person’s brain; or
b) irreversible cessation of circulation of blood in the person’s body.
- Brain stem death
Irreversible cessation of brain and blood.
* Airedale National Health Service Trust v Bland [1993] AC 789
Substantial contribution to the child’s death.
Martin v R (No 2) (1996) 86 A Crim R 133
Stabbed mother in back, she was 7 mths pregnant. Gavin born 6 mths later and died. Whilst in womb he had sustained brain damage. His mother’s blood loss had caused the brain damage, so injury was attributed to stabbing, led to his death 7 mths after being born.
Martin argued that s 269 says foetus was not child when stabbing occurred. This quickly dismissed. s 270 has broader operation, interpreted robustly and cast net widely, sufficiently to capture justice. Martin was found guilty as he caused Gavin’s death. Decision upheld because he caused infant’s death.
Element of CAUSATION - to kill another is to cause their death
Section 270 Term: Kill ‘any person who causes death of another directly or indirectly, by any means whatever, is deemed to have killed that other person’.
Argued in Martin that he could not have caused death because at time of act there was ‘no person’ capable of being killed.
Dyson [1908] 2 KB 454
Defunct year and a day rule. time lapse is not significant. Doesn’t matter now long it was.
Kinash v R (1981) 5 A Crim R 240
s 275 Withdrawn of life support. Brain stem died. Initial assault was only cause. Swelling around brain. Doctor’s disconnected the ventilator and soon died. This was irrelevant, as held that did not cause the death, it was previous act. Def raised s 275, surprising, because medical treatment was proper.
Cook v R (1979) 2 A Crim R 151
Withdrawal of life support. Brain stem died and definition of ‘surgical or medical treatment’. Victim died of embolism. But victim stabbed so risk was there. Medical team had to make decision, calculated risk, not to administer drugs. Could not be said doctors’ caused death. Person who stabbed Cook and everything comes with risk.
Royall v R (1991) 54 A Crim R 53
HC of Aust, subtly different lines taken on issue of causation. Kelly Louise Heally jumped out bathroom, 6th floor, to escape violent assault. Victim took final and fatal step, but did Royall cause it, even though victim took final and fatal step.
