Laws214 week 20 - culpable homicide and omissions PDF

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culpable homicide and omissions...

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Causation Rules  Legal causation: substantive and operating cause  Homicide may be attributed to a persons conduct even if it was not the sole cause of death.  Operating and substantial cause - doesn't have to be the only one, or the most significant. o So could be charged with two causes, for only one homicide!  Various statutory rules underlining this e.g. o 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 that was merely to hasten death.  Not withstanding 164, if a doctor for relief of pain and suffering that they foresee will result in death, provided that the doctor is simply to relieve pain/suffering = not culpable  Will be culpable if intending to hasten death. = double effect principle Culpable Homicide s 160: CM 19 When should homicide be culpable vs not- Tom Sorrell  Sanctity of human life  Criminal law - no justification for willingly taking someone's life except when we command a good moral case.  Cannot have one unifying principle and moral consensus over when killing is permissible Even after coming to agreement on culpability:  It is either murder or manslaughter  We have a huge range of behaviour that sits in these labels NZ law  Intentional killing is SAME legal wrong as risking a death.  We have constructive murder under 168 - where you don't intend to kill, but disable them  All the different circumstances may lead to not same sentence, but same label either MS or murder  NZ doesn't have degrees of murder like states in America

To be an unlawful act, it mist be accompanied by MR, and be done without lawful justification or excuse  All the elements of the predicate offence must be established  This includes any MR elements as well as actus reus  Unlawful act MS does not require knowledge that the act is dangerous or poses risk to life Do not allow strict or absolute liability to be the basis of homicide

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Because it would be unsatisfactory for simple negligence to allow someone to be liable for MS Wherever strict/absolute or negligence is the MR - we import GROSS negligence as the standard

R v Lee It was a consent to harm case Exorcism to rid evils from Joanna He intended to exorcise the demons, Harm: is manslaughter my manual strangulation No intention to harm her?  In common assault you don't need an intentional harm  Just an intentional application of force = Unlawful act: is an intentional application of force

Is 'objectively dangerous' necessary to be directed? Common law standard: unlawful and objectively dangerous Appellant  Appellant said Judge failed to use words 'objectively dangerous' o Objectively dangerous: long standing common law gloss Appellant said OD must be directed Crown  Crown said it doesn't matter to use 'objectively dangerous' because it should be decided on the facts of the case (it was so obviously dangerous, why would you need to direct the jury - i.e. Baseball bat to head is so obvious) Crown told court that OD is common law Court decision  Dangerous act (qualification for unlawfulness): is likely to do harm to the deceased or to some class of persons of whom he was one. - Myatt  Unlawful is: 'unlawful and dangerous' - common law gloss rather than statutory o Court agrees with crown Objective dangerous - is a common law gloss Court on harm  How harmful? - more than trivial but does not need to be serious - Rapira also  The unlawful act must cause death - substantial and operating cause Unlawful act manslaughter: the steps 1. Is there a homicide under s 158 (including a 'high level'/ 'but for' causation) 2. Identify the relevant unlawful act (if it involves negligence/SL/AL uses s 150A, gross negligence) 3. Can you establish both the AR and MR of that offence?

4. Was the unlawful act also dangerous i.e. Was there a risk of some harm (objective test)? 5. Was the unlawful act an operating and substantial cause of death of the victim? ____________________________________ Omission to perform a legal duty - CM 35 S 150A  Only refers to crimes related to Part 8 of Crimes Act (offences against a person)  150A 1 (a): legal duties apply  150A 1 (b): unlawful act requires proof of negligence or is a SL or AL offence  151: duty to provide necessaries and protect from injury  Duty: begins when they start trying to take it upon themselves to care for someone.  155 - duty of persons doing dangerous acts  Legal duty to have and use reasonable knowledge, skill and care to do so  156- duty of person in charge of dangerous things  Reasonable precautions and reasonable care to avoid danger  157- duty to avoid omissions dangerous to life  BROAD  You can always argue a common law duty that isn't written  Most common law duties have been codified Negligent 1. Did something incompetently 2. Failed to realise 3. Acted upon a risk that they recognised Degrees of negligence i.e. You can drive a little bit fast, or extremely fast  

The difficulty in defining negligent manslaughter is setting the standard at the right level Requirements for culpable homicide/manslaughter satisfied only where the s 150a std is met: Major departure = gross negligence

Q v R (baby dies from asphyxia) Facts  Consumed alcohol  Took prescribed zopiclone  Attempted to feed baby.  Failed to adhere to warnings of breast feeding Ongoing facts  Recovering heroine addict and alcohol problems  Q was super tired and unwell - feeding and dozing on and off all night

Appeal grounds  Did crown prove there was a major departure?  If so, was that a substantial and operative cause of the death? Court process  Must confirm that this test is objective and reasonable person standard - Hamer [25]  State of mind not completely irrelevant o Hamer -acts of wilfulness might help prove negligence (SOM evidentially relevant to help PROVE (not disprove) negligence)  Personal characteristics do not modify the "universal" standard of care. o Could use personal character to - lawful excuse s160. o Personal disability i.e. I am BLIND, so couldn't see that it was going on. Judge reasoning Jury should have been directed to look at only two things: the alcohol and the zopicone. More specificity needed as to what the causal omissions were. Miller dissent It was perfectly open to the jury to look at the sequence of things that got the mother to that place.  Background is important  These accumulative causes are substantial and operative Recap of Causation: S 150 / negligent MS  Major departure 'causes' the death.  Can be several causes: doesn't even have to be the main cause o Can be seen as a series of event Structiruing an answer: omissions s 160(2)(b)  Ensure there is a homicide which is capable of being culpable  Identify the relevant duty  Did D omit or neglect to perform or observe that duty? (this may include asking whether the accused had a lawful excuse)  If there was a neglection to perform a duty, was this a major departure?...