Crimes Lecture Notes - Homicide PDF

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Crimes Lecture Notes – Homicide Homicide Part 8, Crimes Act 1961 Crimes Against the Person For this topic – we will be really only focussing on murder and manslaughter. Thing to note – we are looking at culpable homicide – blameworthy – focus on murder and manslaughter – although there are other typ...

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Crimes Lecture Notes – Homicide

Homicide Part 8, Crimes Act 1961 Crimes Against the Person For this topic – we will be really only focussing on murder and manslaughter. Thing to note – we are looking at culpable homicide – blameworthy – focus on murder and manslaughter – although there are other types of culpable homicide, e.g. infanticide. Two (2) Types of Homicide  Murder  Manslaughter Both homicides are both culpable homicides, blameworthy but different. Main thing: HOMICIDE – culpable homicide. Culpable means blameworthy homicide and within this infanticide, etc. but main focus is murder and manslaughter. Starting point is section 158 of the Crimes Act 1961 which defines homicide. Homicide is the killing of one person or a human being by another human being directly or indirectly by any means whatsoever. “another” means human another human being: R v Murray Wright Ltd [1970] NZLR 476 (CA). Indirect killing example: by causing mechanical failure in a car which makes the car, breaks fail, and somebody died. Direct killing example: assaulting someone by a baseball bat or any number of means. The word to kill in the context of section 158 is simply to cause death or to kill means to cause the death of the victim. Mens Rea and Actus Reus, talked about Causation and how in order to be legally liable for some harm, you have to have caused that harm: Causation – R v Smith [1959] 2 QB 35 S, a soldier, stabbed another solider during a fight in the barracks. The stab wound resulted in a collapsed lung that caused a haemorrhage. Soldier was dropped twice on way to hospital; the seriousness of his injuries was not recognised, so treatment was delayed and inadequate; and no blood transfusion facilities were available. Soldier died. Had he had a blood transfusion, his chances of recovery were as high as 75%. S was charged with murder. S argued on appeal that the inadequacy of the treatment the soldier received broke the chain of causation.

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Crimes Lecture Notes – Homicide

Court held that if the original wound was still a “substantial operating cause” at the time of death, then the death could properly be said to be a result of the wound, even if some other cause of death (such as inadequate treatment) was also operating. The chain of causation could only be said to be broken if the second cause was “so overwhelming as to make the original wound merely part of the history”. Whether or not the act of the accuse, Smith, the stab wound was it a substantial cause and operating cause at the time of the victim’s death, notwithstanding there were other causes as well. It is a “but for test” but a little more complicated than simply saying, “but for” because you could say “but for that somebody causes minor injury to somebody else but that minor injury required stitches in the emergency room, while sitting in A&E a bus drives through the window and killed him. “But for that initial wound the victim is not sitting in A&E but the wound is not the substantial and operating cause of death because it was not operating on the victim at the time the victim died.” Required more analysis, was the act of the accused substantial cause and an operating cause. The words that the Court used in the Smith’s case to explain how to do the analysis, where there is more than one cause of death. It was not Smith. It’s only if the second cause, i.e. the medical treatment, for example, is so overwhelming as to make the initial wound a kind of history that the chain of causation is broken. As long as the second cause of death is not so overwhelming then the accused is still liable. This is what to kill means in the context of homicide where one human being kills another human being the sense that their act or omission because sometimes homicide can be constituted with an omission was a substantial and an operating cause of the victim’s death.

Homicide •

See ch 16, Simester & Brookbanks

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Homicide is defined in s 158 CA:  “the killing of a human being by another, directly or indirectly, by any means whatsoever”  “another” means another human being: R v Murray Wright Ltd [1970] NZLR 476 (CA)  to kill means to “cause the death” of the victim

First place to start is s 158 CA which defines homicide – to kill in s 158 means to cause the death of the victim – cause has legal meaning – causation – but for test – but more complex than this – the cause needs to be a substantial and operating cause at the time of the death notwithstanding that there are other causes: R v Smith – it is only if the second cause is so overwhelming that it is deemed to have broken the chain of causation.

Section 160 – Culpable Homicide •

Homicide may be culpable (blameworthy) or not culpable: s 160(1)

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Crimes Lecture Notes – Homicide •

Homicide is culpable in 5 situations – these set out the actus reus of culpable homicide.  unlawful act: s 160(2)(a) e.g. assault  omission without lawful excuse to perform or observe any legal duty: s 160(2)(b) – e.g. failing to protect child from violence from another person; failing to supervise child in pool who then drowns; fail to get medical treatment for child- see Kuka (Nia Glassie)  both combined: s 160(2)(c) – both unlawful act and omission… assault child and then fail to get medical treatment  causing a person by threats or fear of violence or deception to do an act which causes their death: s 160(2)(d) e.g. person threatened who then jumps off apartment balcony – see Australian example of this.  wilfully frightening a child under 16 or a sick person: s 160(2)(e) occurs very rarely

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We will come back to these

For anyone to be charged or prosecuted for homicide, it has to be a culpable homicide. Culpable Homicide is defined in SECTION 160 of the Crimes Act 1961, specifically in section 160(2). Section 160 says: Homicide is culpable. Homicide that is not culpable is not an offence. What might be a situation in which a homicide is not culpable? Killing of one person by another, what might be some situations where they are not liable to be prosecuted? Where a surgeon is operating in an emergency situation and there is no medical negligence. Or a case where somebody’s life support is turned off but was justified by the law. Killing in the context of fear may or may not be crimes. Most of the situations where somebody in NZ and in ordinary everyday life where somebody caused the death of another is culpable homicide. It may not be particularly serious because it might be manslaughter at the very end of the spectrum in terms of fault. There is a huge range of circumstances in which a person might cause the death of another person, but the degree of culpability varies. i.e. killings that are very serious and very morally blameworthy, for instance, killing that is committed in the course of robbery. In the context of manslaughter, you could be liable to manslaughter for failing to supervise the child and the child drowns, that can constitute liability or manslaughter. Whanganui case where a mother left her young child in her car thinking that the bother brought the child to work. She was convicted and discharged, no punishment but those sorts of things can make you liable for manslaughter conviction. [very different kinds of killings]. Five different situations under section 160(2) which gives rise to culpable homicide. Some of them happen more often than others.

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Crimes Lecture Notes – Homicide Most of the cases of culpable homicide fall under section 160(2)(1)(a) or section 160(2)(c) where it is both an unlawful act and an omission or discharge of legal duty. But the unlawful act in section 160(2)(a) is probably the most common, i.e. kill somebody by assaulting in some way, for instance, or by running them over with your car or any number of unlawful acts. Omission without lawful excuse is where, for example, failing to supervise, failing to supervise a child in your care, or failing to protect your child from the violence inflicted by another person. Case of Nia Glassie in Rotorua where a number of people living in the house subjected her to terrible injuries and she died. Her mother was not in the house because she was working, she was also convicted of manslaughter for failing to protect her daughter and for failing to seek medical treatment for her. Failing to seek medical treatment is another omission under section 160(2)(b) which can make you liable for culpable homicide. Both combined under section 160(2)(c) is where you might do an unlawful act and also omit without lawful excuse or observe any legal duty, i.e. you might assault a child and also failed to seek medical treatment for them. The last two provisions don’t come up very often although there are a couple of cases in the readings that deal with section 160(2)(d) which is causing a person by threats or fear of violence or deception and to do an act which causes them death. So, you don’t actually physically kill them, or cause the death themselves but you cause them to do an act which causes their own death. Example: an Australian case where a woman jumped out of the window, a second-storey flat to escape the assault by the accused. He did not push her out of the window, but she climbed out of the ledge and she fell. These are the type of occasions under section 160(2)(d). Wilfully frightening a child under 16 under section 160(2)(e) does not arise very often. No cases that form the basis of culpable homicide.

Some Preliminary Points •

Homicide that is not culpable is not an offence: s 160(4) The homicide must fit within one of those 5 situations.

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Death must occur within a year and a day: s 162 • (interesting facts of R v Evans & Gardiner (No 2) [1976] VR 523) What happened in this case the three people were in a prison cell together, victim was stabbed – hospital – bowel resection – stabbed in April – recovered – back to prison working in garden in March of following year – died as a result of infection caused by the stabbing – defendants still held liable as death occurred within a year and a day – demonstrates the arbitrary nature of this rule – had victim held on for another couple months defendants would not be held liable for homicide. • moves afoot to repeal in NZ 4

Crimes Lecture Notes – Homicide

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Hastening death amounts to killing a person: s 164 E.g. euthanasia cases – you cannot argue that person was going to die anyway because of this section.

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Medical treatment that kills does not excuse accused: s 166: see R v Kirikiri Medical treatment – what is important is whether it is applied in good faith – cases provide interpretation and guidance as to what medical treatment is – usually what is applied to aid victim in their recovery, immediate treatment of injuries etc. In R v Tarei, Heath J found that “treatment” involves something done to enhance the chance of a patient’s recovery and, on the facts of that case, extubation of the patient was to alleviate further suffering, and was thus not treatment for the purposes of s 166. Heath J also found, however, that withdrawal of any form of life support does not cause death – what it does is “prevent prolongation of life through artificial means”: at [18].

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Culpable homicide is either murder or manslaughter: s 160(3)

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Culpable homicide not amounting to murder is manslaughter: s 171

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So: culpable homicide includes murder and manslaughter • Murder and manslaughter have the same actus reus but different mens rea • Murder is usually seen as being more serious than manslaughter and therefore has a higher penalty – not always the case however. • Manslaughter is seen as being “unintentional” killings, therefore less blameworthy • BUT these are generalisations – some murder cases are less morally blameworthy than some manslaughter – examples? – e.g. assisting someone commit suicide compared with a bank robber who shoots and kills bank teller. Someone intending to harm against someone who is distracted for example – king hit punch that kills vs someone who failed to supervise child in pool who drowns because they were distracted – no intention to harm in the later case, less morally blameworthy.

AR of culpable homicide is set out in s 160(2)(a)-(e). These will be either murder or manslaughter. Once the AR has been established (or in some cases admitted by the defendant), then the only issue to be resolved is whether it is murder or manslaughter. The difference between the two is the fault or mens rea. AR + MR = Crime (Homicide) 

If homicide is culpable under s 160(2)(a)-(e) it is either murder or manslaughter.

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If there is no mens rea for murder under s 167 or s 168 then it will be manslaughter.

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Crimes Lecture Notes – Homicide 

Under 167(d) defendant must foresee risk of death and continue regardless.

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Under 168 defendant does not have to foresee risk of death – it is killing while furthering another offence as listed in s 168(2).

Some preliminary provisions in the Crimes Act that govern culpable homicide. Homicide that is not culpable is not an offence: section 160(4). If the killing does not fall under sections 160(2)(a) to (e) – if it does not fall under these circumstances, it is not an offence. It is not culpable homicide. Death must occur within a year and a day: section 162  An interesting one because it says that for somebody to be liable for a killing, the death has to take place within a year and a day from the accused’s act. So, if a defendant assaults a victim and the victim does not die until a year and two days after the assault, assuming the assault was still the caused of death, the defendant is not liable. They seems to be liable a year and a day after. 

Moves afoot to replace in NZ. o The government will repeal section 162 as a result of some cases that have made people not made liable for homicide because of the length of time for victims to die. The Crimes Act 1961 still has the provision but as promised to repeal the section because it is quite arbitrary. o

The facts of R v Evans and Gardner kind of show how arbitrary it is. The victim and the two defendants were in prison together. Fight ensued in the prison and the victim was stabbed by Evans and Gardner. The victim was brought to hospital as he was stabbed in the abdomen and had surgery. The doctors performed bowel resection. The stabbing happened in April and the victim had surgery, recovered, went back to the prison, became unwell in March the following year and died. The cause of death was an infection that had arisen at the bowel resection, something has gone wrong there, that cause this thing to happen and he died. Evans and Gardner were still held to be liable.

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Australia has at that time “a day and a year” rule. England has repealed the “a year and a day” rule.

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What is interesting in the case of Evans and Gardner, the victim had not died at the that point, hold on for another month, then they would have not been liable. The rule is quite arbitrary.

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Interesting to note that under section 162 that the death occurs after a year and a day, the defendant is no longer liable. There may be liable for some lesser offence 6

Crimes Lecture Notes – Homicide like they might be punishable for an assault but if the death does not occur after a year and a day, they are not going to be liable for murder.

Important to know, for anyone to be liable for homicide there has to be a death. If the person does not die, you can only be liable for assault, wounding with intent, aggravated assault, attempted murder. But you can’t be liable for homicide until somebody has actually died. Hastening death amounts to killing a person: s 164  SECTION 164 deals with acceleration of death. o This section of the Act says that everyone who by any act or omission causes the death of another person, kills that person although the effect of the bodily injury cause the person was merely to hasten his death while labouring under some disorder or disease arising from some other cause. o

What sorts of situation that this provision covers? Why is this in the provision of the Crimes Act? If you accelerate somebody’s death, by hastening their death it is still murder even though they may have died anyway from some other cause. This sort of situation might arise in euthanasia.

Even if your motive is to assist the person to end their life because they may be unable to do so themselves, you may still be liable for murder. Seales case and her application for a declaration from the High Court that if somebody helped her to die, they will not be prosecuted. The declaration was not granted. The judge in this case said that under the law], as it currently stands in NZ, bearing in mind that there is a euthanasia in the Life Choice Bill, before the Parliament at the moment], it would still be murder and he could not grant a declaration saying that these people will not be prosecuted as they did help her. At this particular point in time, killing somebody for euthanasia purpose is still culpable homicide. So, section 164 means that you can’t argue legally that the person was going to die anyway, so it is not an offence. It is still an offence. What is interesting in the R v Smith case (UK case) is that in New Zealand under section 166 there is a provision that says that medical treatment that causes death does not excuse the accuse. The wording of the section is that everyone who causes to another person, any bodily injury in itself of a very dangerous nature, from which death results, kills that person, although the immediate cause of death being treatment, proper or improper, applied in good faith. What the legislature has done is to enact this policy whereby defendants who cause dangerous injuries to other people cannot be excused simply because the immediate cause of the person’s death was medical treatment. Medical treatment that kills does not excuse the accused: s 166; see R v Kirikiri

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Crimes Lecture Notes – Homicide If the immediate cause of death is in any case is medical treatment, that does not excuse the accuse or defendant as long as the injury is a dangerous one. This rule only applies in medical treatment. If the immediate cause of death is something other than medical treatment, then might be different. Read the section and case law. The section does not specify that it needs to be a registered medical practitioner. It could be a nurse or a doctor. It is a question of whether or not the treatment is applied in good faith. So, the question is: is it treatment? Is it designed to assist in recovery, but what treatment actually means, anything that is given for therapeutic purposes is treatment. But if it is not for that, then it does not fall under section 166. R v Kirikiri: the defendant Kirikiri had a rifle and beat his partner with that. The cause of her death were dangerous injuries. She was in the hospital and she had surgery, they put a breathing tube, when the tube was taken out, the tube dislodged, and she died. So, Kirikiri was held to be liable because that was said to be treatment. For the purpose of recovery, even if it was the proximate or the immediate cause of death, it did not excuse or absolve Kirikiri of liability. Culpable homicide is either murder or manslaughter: section 160(3) Culpable homicide also includes infanticide and killing in the furtherance of a suicide act. Both infanticide and killing in furtherance of suicide act are manslaughter but they are still culpable homicide. So it is either murder or manslaughter including infanticide. If it is culpable homicide that does not amount to murder, then it will be manslaughter. This means is that what is set out in section 160(2)(a) to (e) is the ACTUS REUS of culpable homicide.  Section 160(2)(a) – (e)  ACTUS REUS OF CUL...