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Flashcards in Homicide Law and Defences Deck (67)
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What is a "legal duty"?

The expression "legal duty" refers to those duties imposed by statute or common law including uncodified common law duties.

Examples include:-

  • Provide the necessaries and protect from injury
  • Protect from injury to your charges when parent or guardian.
  • Provide necessaries as an employer
  • Use reasonable knowledge and skills when performing dangerous acts such as surgary.
  • Avoid omissions that will endanger life


3 Circumstances where homicide becomes culpable.

  • By an unlawful act
  • By an omission without lawful excuse to perform or observe any legal duty
  • By both combined
  • By causing that person by threats or fear of violence, or by deception to do an act which causes his death
  • By wilfully frightenin a child under 16 or a sick person


List the differences between 174  counselling or attempting to procure murder and 175 conspiracy to murder.


  • Murder is not comitted
  • Deals with Procuring or Counselling Murder



  • Applies when murder is comitted or not
  • Deals with conspiracy to murder


What does S180 (2) state about suicide pacts?

Makes it an offence for 2 people to enter into a suicide pact where they are both responsible for the actions that caused one of their deaths and one of them survives. Liable to imprisonment to 5 months


What subjective criteria are used to asses use of force in a plea of self defence?

The degree of force used


  • What are the circumstances that the defendant genuinely beleives exist
  • Do you accept that the defendant genuinely beleives those facts?
  • Is the force reasonable in the circumstances beleived to exist?


What is the procedure used when Alibi winesses are interviewed?

  • Advise defence counsel of the proposed interview and give them a reasonable oppurtunity to be present
  • If the defendant is not represented, endevour to ensure the witness is interviewed in the prescence of some independant person not being a member of Police.
  • Make a copy of the witnesses signed statement taen at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the witness can be withheld.


If the defendant intends to call an expert witness during proceedings, the must disclose to the prosecutor the following....

  • Any breif of evidence to be given or any report provided by that witness, OR
  • If that breif or any such report is not available, a summary of the evidence to be given and the conclusions of any report provided
  • This information must be disclosed at least 10 working days before the fixed date of trial, or within any further time that the Court allows


Define 'Killing of a child' under Section 159

159  Killing of a Child

(1) A child becomes a human being within the meaning of this act when it has completely proceeded in a living state from its Mother, whether it has breathed or not, whether it has independant circulation or not and whether the naval string is severed or not.


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


In common law, allegations of culpable homicide have been supported where the offender has caused death by particular circumstances. Name four of these.

  • Committing Arson
  • Conducting illegal abortion
  • Giving  child an excessive amount of alcohol to drink
  • Supplying heroin to the deceased


Give two examples of culpable homicide that has been caused by the victim's actions, prompted by threats or fear of violence.

  • Jumps into a river to escape attack and drowns
  • Jumps or falls out of a window because they think they are going to be assaulted and dies


To establish proof of death you must prove three key elements. What are they?

  • eath occurred
  • Deceased is identified as the person who has been killed
  • the killing is cupable


Define Homicide as per S158

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


Define attempts S72(1)

Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accompishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.


Define culpable homicide S160(1) and (2)?

(1) Homicide may be either culpable or not culpable.

(2) Homicide is culpable when it consists in the killing of any person

  • By an unlawful act; or
  • by an omission without lawful excuse to perform or observe any legal duty;or
  • by both combined; 
  • by cauing that person by threats or fear of violence or by deception to do an act that causes his death; or
  • By wilfully frightening a child under the age of 16 years or a sick person


How does Adams on Criminal Law define Wilfully frightening?

"Intending to frighten, or at least be reckless as to this"


Is a body required to prove the death of a person? Explain your answer with reference to case law R v Horry?

No a body is not required.


"Death should be proved by such circumstance as render it morally certain and leave no ground for reasonable doubt - that the circumstancial 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"


What does R v HARNEY state about 'recklessness.'


"[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk"


Explain 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 GBH.


Explain difference between voluntary and involuntary manslaughter.


Mitigating circumstances that reduce murder to manslaughter even though defendant may have intended to kill or cause GBH.



Covers killing caused by an unlawful act or gross negligence when there has been no intention to kill or cause GBH.


Complete the sentencing for the section of abandoning a child. Section 154

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.


Outline the ingredients of section 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


Explain the defence for children under 10 and children 10 to 13?

A child under 10 years ha and absolute defence to any charge brought against them.


For children aged between 10 and 13 years it must be shown that the child knew their act was wrong or contrary to law. 


Section 23 - Insanity

Every one shall be presumed sane at the time of doing or omitting any act until the contrary is proved.  


Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in sucha condition of mind as to render him irresponsible for the act or omission.


State MCNAUGHTENS's rules.

If a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:-

THe nature and quality of theri actions, or

that what they were doing was wrong.


Define Automatism and Case law R v COTTLE

Automatism is a state of total bblackout and the person is not conscious of their actions or in control of them.



Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousnedd that nethertheless leaves the person so affected able to exercise bodily movements.


What case law deals with automatism brought about by voluntary intake of alcohol or drugs? What does it state?


Where automatism is brought about by a voluntary intake of alcohol or drugs the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention.


Explain what a 'strict liability' offence is and give an example.

A strict liability offence is an offence where no mens rea need be proved by the prosecution. An exmaple of this is driving with excess breath alcohol.


What three points must be satisfied before a defence of compulsion can be used?

  • Beleif must be genuine
  • Presence
  • Immediacy


Discuss the defence of entrampment.

Entrapment is not a defence per se preferring instead to rely on the discretion of the trial jusge to exclude evidence that would operate unfairly against the defendant. 


Entrapment occurs when an agent of an enforcement body deliberately causes a person to committ an offence for prosecution. 


Explain the subjective criterea for the degree of force used in relation to self defence

  • What are the circumstances that the defendant genuinely believes exist?
  • Do you accept the the defendant genuinely beleives those facts?
  • Is the force used reasonable in the circumstances believed to exist?