W5 L - homiside causation PDF

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Homicide – unlawful killing (Homicide is not the crime, either murder, manslaughter or unlawful striking causing death) Murder – s 302 Manslaughter - s 303 - Unlawful killing but without intention - S 304 304A 304B (killing on provocation, abnormal state of mind, domestic violence) Unlawful striking causing death – s 314 (since 2014) Unlawful killing – s 291 - Not authorised, justified or excused (s 284 consent is immaterial)  Authorised - police powers and responsibilities act 2000 s616(4)  Justifies or excused - self-defense, accident - Person (victim)  S 292 a child becomes a person after an actual birth (have breathed)  S 313 kill an unborn child by assaulting a pregnant woman  S 282 Surgical operations and medical treatment - Kill  Death (no definition in the code, may be presumed if the body is never found circumstantial evidence, but difficult)  Causes (directly or indirectly - criminal negligent) s 293 Deliberate act causing death Causation for killing (simple in life, complicated in exams) Factual causation + legal causation - What the accused did (a matter of fact) constitute a causation (“but for” test) - What the accused did is capable (a matter of law) of constituting a causation  Multiple factors – third party acts before or after the accused  The victim was injured, and the accused did or did not do something leads to the death Royall (1991) 172 CLR 378 at 441-442 1) The operating and substantial cause test 2) The natural consequences test 3) The reasonable foresight of the consequence test 4) The novus actus interveniens1 test Which test to apply? o The operating one is the most used to general situations (R v Sherrington [2001] QCA 105, mention both Royall and Sherrington as Royall is NSW common law case) o Novus actus interveniens (irrational behavior by victim) – natural consequence test as additional information o The accused’s conduct doesn’t have to be the only cause, nor the major cause. If it is significant and substantial, the accused can be deemed to be the causation of the death (more than one person can be criminally responsible).

1 An intervening unforeseeable event that occurs after the defendant's negligent act and operates to precipitate or worsen the plaintiff's loss.

Operating and substantial cause - Krakouer (2006) 161 A Crim R 347: multiple causes - Case fact: Colbung caused a fatal wound to the victim. Krakouer hit the already dying victim and caused another mortal wound. - Both are convicted of murder. K’s conduct – “significant contribution” The fact that the victim was already dying doesn’t mean K was not responsible. Natural events - Hallett (1969) SASR 141 - Case fact: Hallett hit the victim and left him lying unconscious on the beach. The tide came in and the victim died due to drowning. - The tide was a natural event. It did not break the chain of causation. The accused’s conduct - “sufficiently substantial causal effect” - However, if the victim was left on an area where normal tide would not cover, and the victim drowned because of a tsunami, the chain of causation would have been broken. Novus actus interveniens - multiple causes/ third party - R v Pagett (1983) 76 Cr App Rep 279 - Case fact: the accused shot at a police officer who was trying to arrest him, then held a pregnant teen girl as human shield as the police fired back. The police killed the girl. - The accused was charged with murder and convicted of manslaughter. The accused appealed that he did not actually killed anyone. The 3rd party involvement is so independent that did not break the chain of causation. (does not have to be the sole or main cause) - In order to be independent: a voluntary 3rd party act that does not involve legal duty Novus actus interveniens – irrational behavior by victim - Royall - Natural consequence test 1) The wrongful act (threat, physical harm, etc), a well-founded apprehension in the victim 2) A natural consequence – escape 3) The fatal injury caused by escape 4) Reaction not unreasonable or disproportionate 5) The reaction was foreseen or intended by the accused (consider S 295 causing death by threat) Novus actus interveniens – code provisions - S 295 causing death by threat – Royall (First Royall, then s 295 in exam, but both are needed) - S 296 acceleration of death – Krakouer - S 297 when injury or death might have been prevented by proper precaution – Blaue [1975] 1 WLR 1412 refusal of blood transfusion (still responsible for the death) - S 298 injuries causing death in consequence of subsequent treatment –  R v Cook (1979) 2 A Crim R 151;  R v Jordan (1956) Cr App R 152 (the treatment is “so palpably wrong” that became the sole cause of death);  R v Kinash [1982] Qd R 648 Criminal negligent causing death

Causation – omissions or failure to act a duty - Ss 285, 286 duty to provide necessaries - S 288 duty of persons doing dangerous acts - S 289 duty of persons in charge of dangerous things - flying fox accident last week - S 290 duty to do certain acts (Criminal negligence is not a crime itself, it’s a pathway to causation of other offences) Criminal negligence has a much higher standard than civil negligence – “such disregard for life and safety of others as to amount to a crime against the State and conduct deserving punishment”: Bateman (1925) 19 Cr App R 8 at 13(English case); R v BDD [2007] 1 Qd R 478(Qld case adapting Bateman ) Necessaries - S 285, 286 (victim under 16) - R v Macdonald and Macdonald (1904) St R Qd151 - Case fact: a girl under care, M&M failed to provide medical aid, as well as other necessities of life like food, shelter and clothing - R v Nielsen (2001) 121 A Crim R 239 Mostly manslaughter, s 324 failure to supply necessaries, s 328 negligent acts causing harm. Rarely murder, unless there were evidence of intentional failure to provide necessaries. Dangerous acts – s 288 - Patel (2012) 290 ALR 189 - Case facts: a qld doctor providing unnecessary, risky surgeries on large number of patients Dangerous things – s289 - Definition of dangerous things depends on the content  A pencil: R v Dabelstein [1966] Qd R 411  Flying fox: Clark [2007] QCA 168  A meat preservative: R v Hodgetts and Jackson [1990] 1 Qd R 456 Duty to do certain acts – s290 (little case law, rarely occur, not that important)...