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Homicide1. GENERAL INTRODUCTIONThree of the crimes against the person listed in Part 8 of the Crimes Act 1961 fall under culpable homicide: Murder Manslaughter Infanticide In this course, we will look at only the first two: murder and manslaughter.2. ELEMENTS OF HOMICIDEDue to the structure of the C...

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Homicide 1.

GENERAL INTRODUCTION

Three of the crimes against the person listed in Part 8 of the Crimes Act 1961 fall under culpable homicide: 1. Murder 2. Manslaughter 3. Infanticide In this course, we will look at only the first two: murder and manslaughter.

2.

ELEMENTS OF HOMICIDE

Due to the structure of the Crimes Act 1961 (see s 160 of the Act), the Crown must establish that a death is: 1. first, a homicide; 2. second, one of the types of culpable homicide (murder, manslaughter or infanticide) So in NZ, you can have a death that is a homicide but not a culpable homicide. Only culpable homicides are criminal offences (s 160(4)). ‘Homicide’ is defined in s 158 of the Crimes Act 1961 as “the killing of a human being by another, directly or indirectly, by any means whatsoever”. 2.1.

The offender

‘By another’ (s 158) means by another human being.

2.2

The victim

The victim must be a living human being at the time of the killing. Destruction of a foetus or of a child in the process of being born is not homicide. s 159 of the Crimes Act defines when a child becomes a ‘human being’ for purposes of the Crimes Act, and when killing such a child can be homicide: (1)

s 159 Killing of a child A child becomes a human being within the meaning of this Act 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.

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(2)

The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.

2.3

Causing death

2.3.1. Introduction Under the s 158 definition of homicide, this may be done “directly or indirectly, by any means whatsoever”. In some situations, there may be a question about whether an intervening cause (novus actus interveniens) broke the chain of causation, in which case the defendant would not be criminally liable for the death. England & Wales: R v Pagett (1983) 76 Cr App R 279 (CA) A defendant fired at police and used a victim as a human shield. The police returned fire and shot the human field. The man using the innocent person was held to have caused that person’s death. The issue of causation seems to borrow issues from party liability and innocent agents. The following sections of the Crimes Act 1961 are particularly relevant to causation in the homicide context. (‘But For’ Test)

2.3.2. Year and a day rule – S. 162 repealed 2019 2.3.3. No psychological causation s 163 provides that there is no criminal responsibility for killing by: - “any influence on the mind alone” or - “any disorder or disease arising from such influence” But note the exceptions for killing by wilfully frightening children under 16 or sick people.

2.3.4. Acceleration of death s 164 Acceleration of death Everyone who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his or her death while labouring under some disorder or disease arising from some other cause. New Zealand: Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 (HC) 2|Page

A man in a persistent vegetative state had family and practitioners agree he was in a state of living death and made an application to the HC for the lawfulness of the act to withdraw life support. It was held that it is not a positive act, but is an act of omission – surely withdrawing treatment is a positive act though? The court held there is no duty where there is no hope, and so the doctor could not cause the persons death. But what about where a doctor does do a positive act? A doctor cannot conduct themselves in a way that could lead to a positive death, yet they do so every day. Orchard says the quicker the death results after the giving of treatment (pain treatment) then the greater presumption that it was given for killing rather than the treatment. So a doctor must be careful to give treatment not for the purpose of hastening a patient’s death. Conclusion : Withdrawal of life support is not the legal cause of death (so, not 'accelerating death') when: doctors had no legal duty to continue it, or there was lawful excuse for the withdrawal For both, doctors must follow good medical practice and relevant guidelines and procedures

Hutt District Health Board v B [2011] NZFLR 873 (HC) Involves a 7-year-old child who was going to die, with lots of medical conditions. Tube providing nutrition was dislodged, if you do not re-insert that tube the child would die. Family + medical staff chose not to re-insert the tube as it would cause pain to the child. Not re-inserting nutrition-hydration tube would not be culpable homicide. Draws distinction between withdrawing treatment and doing something positively to cause the death (not lawful) positive act to end life → possibly liable for homicide. Seales v Attorney-General [2015] NZHC 1239 - Read Parts I, II and the Conclusion; paras. [100]-[106] are especially relevant to s 164. Administering/providing drug to end life, even with patient's consent, could be culpable homicide (or s 179 assisting suicide). This should be decided in Parliament.

2.3.5. Causing preventable death s 165 Causing death that might have been prevented Everyone who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.

s 165 implies that the victim’s failure to take proper means to prevent death will not break the chain of causation. England & Wales: R v Blaue [1975] 1 WLR 1411 (CA) 3|Page

A man was assaulted and did not want a blood transfusion so died even though he could have easily survived. Should this break the chain of causation? Should rationality and illogicality be a factor? Should we take the victim as we found them? How does the court make a judgement over the right to refuse medical treatment? What if you cause a relatively minor injury that needs treatment, but the person refuses it, goes home to treat themselves and dies? Has the person causing the minor injury killed them? g) Death resulting from treatment: s166 reads: s166 Causing injury the treatment of which causes death Everyone who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

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New Zealand: Refusal of medical treatment: same result, will not exempt defendant from liability (note s 11 of the New Zealand Bill of Rights Act) Removal of life support in good faith also does not break the chain of causation: Fact : Fact that V was a Jehovahs Witness made the stab fatal. D was still guilty as he had to take the victim as he found her.

R v Trounson [1991] 3 NZLR 690 (CA) series of fights, victim admitted to hospital with severe head injuries. Life support → later withdrawn as victim would not regain consciousness. Defendant who committed the assault was liable for murder. Appeal: if the life support had not been withdrawn, the victim could have survived past a year and a day, where they would not have been convicted. E.g. the doctor breaking the chain of causation by turning off life support. → still held guilty of murder, life support had been withdrawn in good faith, they truly believed there was no hope of survival and when the doctors make that informed medical choice, they do not need to consider whether or not to preserve that persons life for the defendant to escape liability. • Do not want to let defendant's get off because the doctors chose to take the victim off life support. → money to keep victims on life support (doctors can make informed decisions with family) 2.3.6. Death resulting from treatment In some situations, we need to look into whether the treatment itself breaks the chain of causation. s 166 Causing injury the treatment of which causes death

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Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

England & Wales: R v Jordan (1956) 40 Cr App R 152 (CCA) A man had a knife wound and was in hospital – he was nearly healed. The man received medication he was allergic to and died. Had the person who caused the wound caused their death? Under s166 they would have, as they died by a mistake in good faith – but they were almost healed. Can this be a blanket protection for all medical practitioners? The court held that this did break the chain of causation and the person who inflicted the wound was not held to have caused the death. Orchard said it could apply where the injury is still a contributing cause of death; but where the defendant’s cause of action is no longer a contributing cause of death, other than that it provides the history or context of the person receiving injury then the law is unclear. In Jordan the wound was only history and background, or context to which someone had the opportunity to give him medicine he was allergic to him. R v Cheshire [1991] 1 WLR 844 (CA) – (concepts of independence & potency) Victim shot by defendant- poor medical care -he died and defendant not guilty as significant cause. the victim died as a result of a blockage of his windpipe which resulted from a tracheotomy performed in the course of treatment of wounds inflicted by the defendant. The Court of Appeal, at 851–852, held that only in “the most extraordinary and unusual case” could treatment of wounds be regarded in law as the cause of death to the exclusion of the wounds. Even though negligence in the treatment was the immediate cause of death, the jury should not regard it as excluding the defendant’s responsibility “unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant”. R v Smith [1959] 2 QB 35 (Courts Martial Appeal Court) – discussed in R v Kirikiri, below Facts: Smith stabbed the victim who died 4 hours later; A fellow member of his company had dropped the stab victim on the way to the hospital to get treatment. Once in emergency care, there was no blood transfusion. The victim was given saline solution (which, medically, is a gross error), and used artificial respiration - not knowing that the victim was suffering from a pierced lung). It was stated that with proper treatment, chances of the victim's survival was about 75%. Held: The Court looked to particular facts of the case, and Smith was convicted, as he satisfied the Essence of causation test. If the stabbed soldier had received proper treatment while in emergency care, he would have had a good chance of a complete recovery. Smith was consequently convicted of manslaughter because the wound was in fact the "operating and substantial cause of death".

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New Zealand: R v Kirikiri [1982] 2 NZLR 648 (HC) A man shot his partner in the hip and beat her with a rifle causing significant structural damage to her face and skull. The woman needed a tracheotomy before surgery, but it fell out and she died. The man argued the medical treatment was so independent and potent that it rendered his actions insignificant. The court said there was enough evidence for a jury to determine that the original injury had sufficient potency to cause the death. The court cited R v Smith [1959]; Lord Parker CJ: “It seems to the court that if at the time of death, the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history, can it be said that the death does not flow from the wound.” Orchard said in terms of the potency issue to consider if there is a real risk of death if untreated. h) Inducing victims to kill themselves s160(2)(d) of the definition of culpable homicide includes as culpable homicide killing ‘by causing that person by threats or fear of violence, or by deception, to do an act which causes his death.’ This is often where someone is scared into doing something, e.g. scare person where they run into road and hit by a car – the person who scared them will be said to have caused their death. The same could be in the case where someone kills themselves because of threats made to them. It appears a threat of blackmail will not be enough. What counts as ‘treatment’? − Decision not to perform surgery: can be part of ‘treatment’ and so within scope of s 166. If made in good faith, does not break chain of causation: − R v Tarei (No 3) HC Tauranga CRI-2004-087-1673, 5 August 2005 There was an assault by the defendant which caused damage to the victim’s brain, putting them into a permanent vegetative state and an application to turn off life support was made within a year and a day. When deciding whether to turn off life support, was it a relevant consideration whether it happened before or after a year and a day, which had large repercussions for the defendant, but for medical practitioners made no difference. The court held that it was an irrelevant consideration. f) Causing preventable death: s165 reads: s165. Causing death that might have been prevented Every one who by any act or omission causes the death of another person, kills that person, although death from that cause might have been prevented by resorting to proper means. − Withdrawal of life support: - Court of Appeal left this undecided in: R v Trounson [1991] 3 NZLR 690 (CA)

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Criminal law — Defences — Murder — Provocation — Whether sex or age are "characteristics" of offender relevant to defence of provocation — Crimes Act 1961, s 169(2). Criminal law — Offences — Murder — Removal of life-support system — Whether if system not withdrawn deceased might have survived for one year and one day so as to remove criminal responsibility — Crimes Act 1961, ss 162 and 166. The accused, then aged 18 years, was charged with murder. The trial Judge intervened during his counsel's closing address to the jury and prevented her from dealing with certain "characteristics" of the accused, namely his age and sex. In his summing up, the trial Judge omitted all reference to those matters. The victim had been admitted to a hospital accident and emergency department and had been resuscitated and his heartbeat restored. He was then put on a life-support system. The doctor responsible for him concluded when he first saw him that the outlook was hopeless. From then on, treatment was continued to be administered with the sole object of saving organs for transplant, after obtaining appropriate consent. Subsequently, it was determined that organ donation was not feasible, and the life-support system was withdrawn. The victim died shortly after. The accused appealed on the grounds, inter alia: (i) that the omission in the summing up of any reference to the "characteristics" of the accused amounted to a misdirection; and (ii) that, but for the withdrawal of the lifesupport system, the victim might, with proper treatment, have survived for the statutory year and a day under s 162 of the Crimes Act 1961, after which a person is not criminally responsible for killing another. Held: 1 The trial Judge did not misdirect the jury on provocation as the accused's age and sex could never have been regarded as a factor making an ordinary person susceptible to reacting to the provocation alleged with the deadly violence the accused manifested. There may be little room for sex or age to be admitted as "characteristics" under s 169(2)(a) except perhaps for the latter at the extremes of senility or obvious youthful immaturity (see 693 line 14).

2 The extension of the victim's life by artificial means for the sole purpose of enabling his killer to escape the criminal consequences of his act cannot be a factor to be taken into account in reaching the medical conclusion that there was no further point in postponing the victim's otherwise immediate and inevitable death (see p 696 line 6). Appeal dismissed.

- High Court held that this is not ‘treatment’ for s 166 in: R v Tarei (No 3) HC Tauranga CRI-2004-087-1673, 5 August 2005

2.3.7. Inducing victims to kill themselves s 160 defines culpable homicide. s 160(2)(d) includes as culpable homicide “the killing of any person ... by causing that person by threats or fear of violence, or by deception, to do an act which causes his or her death”.

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This provides that the victim’s own act might not break the chain of causation when the victim does something as a result of the defendant’s conduct and dies thereby. The victim’s response must be reasonably foreseeable: R v Tomars [1978] 2 NZLR 505 (CA) [details to be covered under manslaughter] This involved intimidating driving where a motorcyclist swerved as a result of intimidating driving and was hit by another motorist and killed. The CA applied a test of reasonable foreseeability – was it reasonably foreseeable that the victim would do what they did? The court said it would apply if the victim had cause to fear violence that was more than an insignificant cause of the victim’s actions, that the actions of the victim were reasonable to a reasonable person in their position, and whether what the victim did contributed to their death? The mere negligence or recklessness of the victim will not change or break the chain of causation and will not alleviate the defendant of their culpability due to this provision. Reasonable foreseeability, Fright response Causing Victim to do act that causes death • Victim was on motorcycle, car hassling motorcyclists. • One took evasive action, turned off his lights and turned around and went other way and was hit by accused Was the accused's behaviour the cause of his death?

Summary – provisions on causation/intervening act issues D = defendant V = victim No psychological causation – s 163 D not liable if V dies “by any influence on the mind alone” or “by any disorder or disease arising from such influence” - unless V is under 16 or a sick person (in which case it could be manslaughter under s 160(2)(e)) Acceleration of death – s 164 D can be liable even if the bodily injury D caused merely hastens V’s death “while labouring under some disorder or disease arising from some other cause”. Causing preventable death – s 165 D can be liable even if “death from that cause might have been prevented by resorting to proper means”. Death resulting from treatment – s 166 If D caused V “any bodily injury, in itself of a dangerous nature, from which death results”, D can be liable “although the immediate cause of death be treatment, proper or improper, applied in good faith”. 8|Page

Inducing victims to kill themselves – s 160(2)(d) If V does an act resulting in V’s death due to D’s threats or deception, the chain of causation may not be broken and D may still be liable (“causing that person by threats or fear of violence, or by deception, to do an act which causes his death”).

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UNIVERSITY OF CANTERBURY

SCHOOL OF LAW

LAWS 202 CRIMINAL LAW 2019

HOMICIDE & SELECTED OFFENCES AGAINST THE PERSON

HANDOUT 2: CULPABLE HOMICIDE: MURDER CONTENTS 3. Culpable Homicide – s 160 3.1. Murder 3.1.1. 3.1.2. 3.1.3. 3.1.4. 3.1.5. 3.1.6. 3.1.7.

3.

Introduction Intentional Killing – s 167(a) Reckless killing – s 167(b) Transferred mens rea – s 167(c) Killing in furtherance of an unlaw...