Homicide

Order to follow in exam

1) Is it homicide?

2) is it culpable homicide?

3) is it murder?

s 158 homicide defined

• Killing

• Of a human being 

• By another human being (alleged offender); 

• Directly or indirectly by any means whatsoever. 

1.1 Killing crimes act rules

Crimes Act Rules; D causes death even if by any act or omission

• D merely hastens V’s death: (s 164)

• V’s death could have been prevented by restoring to proper means (s 165)

• V’s death results from medical treatment for injury D inflicted (s 166)

• D induces V’s fatal conduct by threats violence or deception (s 160(2)(d))

• D does not cause death by influence on V’s mind alone (s 163). 

  • Exception; wilfully frightening a child under 16, or a sick person (s 160(2)(e))

Killing - common law principles -  person kills/causes death if:

• = causing death (R v Storey)

• original act is a substantial and operating cause of death (R v Smith)

• Can be more than one cause of death (R v Kirikiri, R v McKinnon)

• If more than one injury is inflicted, death can be the result of the original injury if the original injury is an operating and substantial cause of death. (R v McKinnon)

• If people work together and the combination of harm caused makes death occur all D’s can be held liable despite fact that the injuries they inflicted alone would not cause death (R v Lewis)

• Applies regardless of physical characteristics or belief of victim “egg shell skull’ principle (R v Blaue, R v Renata)

• Act done in a legal duty or involuntarily (R v Tema) is not a novus actus breaking chain of causation. (R v Pagett)

Killing in fear and escape cases

refer to s 160(d) - Causing that person (V) by threats, or fear of violence, or by deception to do an act which causes his or her death. 

• Fear and escape is causation - unless V’s act is so daft that it is unforeseeable to a reasonable person - must be a natural consequence of D’s conduct and objectively foreseeable  (R v Tomars, R v Roberts, Mackie)

Killing - escape liability if

• Overwhelming second cause of death that makes original act merely apart of the history. (R v Smith) - Doesn’t need to be the final cause of death. (R v Kirikiri)

• Break in the chain of causation may prevent liability; 

  • Natural event: an extraordinary and unforeseeable act of god. (NOT if the event is foreseeable and natural) (R v Hallet)

  • 3rd party; If the act done by the 3rd party is voluntarily free, informed and independent to act by D (R v Pagett; R v Leaitua)

Killing of another person

Must be living human being (attempt if trying to kill dead person) When is the beginning of a human being? Human = when born alive from the body of its mother (s 159(1))  -> if child dies of consequence of injuries received before, during or after birth [so long as it’s born] = homicide When is a person dead? Brain [stem] death - irreversible cessation of functioning of the entire brain including the brainstem. (Auckland Area Health Board v Attorney General) (Australia NZ Intensive Case The statement on death and organ donation)

1.3 by another human being - killing

Autonomous weapon that causes loss of life is not homicide (if person programs machine = secondary killing) Corporations cannot commit homicide (secondary party)

1.4 Directly or indirectly… by any means whatsoever - killing

May be by an omission (R v Kuka) Where a person has a legal duty to act and omits to act ‘But for’ the omission death would not have occurred. (R v Kuka) So when omission is stated in a section (s 164, 165) read omission as omission to discharge a legal duty.

Culpable Homicide -Crimes act requirement

 S 160 Culpable Homicide, Crimes Act. 

1. Can be culpable or not culpable. 

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

1. By an unlawful act; 

2. By an omission without lawful excuse to perform or observe any legal duty

3. Both combined ^^

4. By causing that person by threats of fear of violence, or by deception to do an act which causes his death. 

5. By wilfully frightening a child under age of 16 or a sick person. 

4) Homicide that is not culpable is not an offence [acquittal].

S 171; culpable homicide not amounting to murder = manslaughter

Unlawful Act culpable homicide —- requirements + CL

Homicide is culpable when it consists in the killing of any person  By an unlawful act;

Unlawful act requires AR & MR of offence & no legal justification or excuse (R v Lamb) Unlawful act ‘means a breach of any legislation’ (including regulations, bylaws etc)   BUT Unlawful act must be an act likely to do harm  (R v Myatt) Usually is but not always would be an act which breaches some law concerned with public safety Not necessary to prove a risk of serious harm. If the unlawful act is dangerous then the risk of some harm is sufficient. (R v Myatt) Unlawful act must be a substantial and operative cause of death - even if minor (R v Myatt, R v Renata, R v Hawkins) Enough if unlawful act is inherently dangerous (even if only intending to cause minor harm it is enough) (R v Renata, R v Hawkins) Must be casually salient and not incidental (R v Myatt, R v Hawkins) A series of events may be treated as a ‘single transaction’ causing death [acts must be sufficiently closely connected, objectively dangerous and cause death] (R v Lee) Carelessness or act must be a major departure from that expected (R v Powell; s 150A Crimes Act) - Note: Probably easier to deal with crimes that invole negligence under omission to discharge a legal duty if there is an omission whilst doing an act.

By an omission without lawful excuse to perform or observe any legal duty - elements

Elements;  Legal duty owed Omission to discharge duty Omission is a major departure from the standard of care expected of a reasonable person who owes duty (s 150A) Absence of lawful excuse.

1. what is a legal duty - By an omission without lawful excuse to perform or observe any legal duty

Crimes Acts Duties S 150A - standard of care applicable to persons under legal duties 151 - duty to provide necessaries and protect from injury 152 - duty of parent or guardian to provide necessaries and protect from injury 153 - Duty of employers to provide necessaries 154- Abandoning a child under 6 155 - Duty of persons doing dangerous acts 156 - duty of persons in charge of dangerous things  157 - duty to avoid omissions dangerous to life  Includes common law duties (R v Lunt) When D has created or contributed to the creation of a state of affairs which he knows or ought to reasonably know has become life threatening, a  consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise (R v Evans)

Omission must be dangerous to life (R v Hawkins) Omission must be causally salient (R v Myatt) Requires a major departure from standard of care expected of a person to whom the duty applies (s 150A)

Omission to discharge duty - By an omission without lawful excuse to perform or observe any legal duty

Section 151 deep dive; Care or charge - (Literal care (R v Evans), retirement village, familial, being aware of needs, control over living conditions) Adult = implicit over 18 Omission to provide necessaries or protect from injury  Absence of lawful excuse Caused the death and is a major departure Example : R v Taylor Those in direct care are liable  Those who should know of neglect may be liable to some offence (might not be manslaughter though) Mother would probably have lived longer if Taylor didn’t fail to act. (R v Kuka)

S 152 - duty of parent or guardian to provide necessaries and protect from injury Parent or persons in place of parent;  Actual care or charge Child - person under age of 18 Scope of duty to protect from injury:  Human sources  Non-human sources (Bath, swimming pool, Quad-bike) (E v R, R v Scott)

Caused death - By an omission without lawful excuse to perform or observe any legal duty

But for omission would or would probably not have died (R v Kuka)

Omission is a major departure s 150A- By an omission without lawful excuse to perform or observe any legal duty

Always objective - D’s personal characteristics are irrelevant unless it indicated that the person lacks capacity or is insane [or if they give insight into knowledge of risk and running it anyway]  (R v Hamer) ·Ds state of mind may be relevant to whether the omission was a ‘major departure’ from the standard of care expected of a person (R v Adomako)

Lawful excuse - By an omission without lawful excuse to perform or observe any legal duty

General defences eg insanity and self defence etc  S 20 - all rules and principles of CL which render any circumstances a justification or excuse for any act or omission or a defence to any charge shall remain in force and apply except so far as they are altered by or are inconsistent with the Act.  1. Refusal of life prolonging treatment  - by a competent [having mental capacity to make that decision] person. (Re B; Department of Corrections v All Means All; DoC v Shaw) - medical autonomy 2. Patient in a ‘persistent Vegetative State’ with no hope of recovery & treatment provides no benefit to that person (Airedale v NHS trust v Bland) 3. If withdrawal of treatment is consistent with ‘good medical practice. (AAHB v AG; patient in minimally conscious state unlikely to recover; Shortland v Northland Health Ltd) Good faith decision - withdrawal is in patients best interests;  Conformity with prevailing standards and practices commanding approval within the medical profession;  Ethics Committee approves the medical decision (Fact dependent) Full and informed consent of family (Fact dependent)

d) By causing that person by threats of fear of violence, or by deception to do an act which causes his death. - test

Test; R v Tomars The D Caused the deceased to fear violence or otherwise threatened the deceased;  That fear was a not insignificant cause of the deceased’s response;  That response was the kind of reaction that could reasonably have been foreseen by a reasonable and responsible person in D’s position; (V’s act must be proportionate (not irrational and beyond contemplation of a reasonable person) to D’s act) - (Perry v R/Te Tomo v R) That response contributed in not an insignificant way to the death of the deceased. - P must prove it caused the death (Perry)

3) Is it murder? - types of murder

If none of the murder provisions fit then its manslaughter by default (or infanticide)

• intentional murder s 167(a)

• Reckless murder s 167(b)

• Transferred malice s 167©

• unlawful object s 167(d)

Intentional murder- s 167(a)

If the offender means to cause the death of the person killed;

Actual intent to kill  (R v Aramakutu) Indirect or oblique intention - uncertain if this suffices for intentional murder [probably charge under (b) or (d)]. (NOT been applied in NZ)

Reckless murder - s 167(b)

If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death and is reckless whether death ensues or not.

Intent to cause bodily injury D knows bodily injury is likely to cause death (likely= risk is so appreciable that to indulge in the conduct is seen by society as the virtual equivalent of intentional killing, ‘real risk, a substantial risk something that might well happen’ - R v Piri) Recklessness (R v Harney - deliberately taking the risk of killing. Actual [subjective] appreciation of risk of death at the material time)

Transferred malice - s 167(c)

If the offender means to cause death or being so reckless as aforesaid, means to cause such bodily injury as foresaid to one person and by accident or mistake kills another person, though he does not mean to hurt the person killed.  ^^ incorporates intentional murder, and reckless murder

May result from:  Accident: D misses actual target - kills another person in vicinity  Mistake: D mistakes identity of the victim killed - i.e. kills/injures ‘wrong’ person.

Unlawful object - s 167(d) - elements

If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.  Elements:  Unlawful object Another act for purposes of achieving that unlawful object that is known to D to be likely to cause death. I.e. creates a collateral risk of killing someone to achieve an unlawful object.

Unlawful object - s 167(d) - how it differs from a and c

Differs from 167 (a) and (c ) - no intent to kill is required in (d) Differs from 167 (b) and (c ) - no intent to cause bodily injury is required in s 167(d) When the unlawful object involves person injury - S 167(d) is available when the unlawful object was a different kind of personal injury to the victim that the [separate] acts are likely to cause death (R v Mckeown)

Unlawful object - s 167(d) - Common law rules

Unlawful act must be a crime (Shadrock v R) The (fatal) act must be distinct from that unlawful object [crime] (Shadrock v R) It may be murder under s 167(d) even if the elements of the unlawful act is ‘technically legally’ complete, but the unlawful object crime is continuing when the fatal act occurs (question of fact for jury whether offence had concluded or continuing) (Shadrock v R) Jury decides in each case whether the fatal act is sufficiently linked to the object and D knew that the act was likely to cause death (proximity principle/analysis) (Shadrock v R) D must actually know/consciously appreciate that the act to achieve the unlawful object is likely  to cause death i.e. there is a real/substantial risk that death might well happen (Piri) There is no principle in law that requires the D to foresee exactly how death might occur (R v McKeown)

concurrence of AR + MR in murder cases

Strict concurrence of AR & MR not always required by courts; have applied;  Continuing act doctrine - enough if MR occurs at some point of continuing act there is murderous intent (think like Fagan for the doctrine) Rapid series of events - enough if MR is continuous throughout all acts of D (R v McKeown);  ‘One transaction’ principle -Whole series of acts (with some time in between) can infer that MR was apparent at one point.  established in Thabo Meli (PC UK) applied in Kumar

One transaction principle

Parties cannot avoid criminal liability simply because they believe mistakenly that they have achieved their objective (killing the V) by one act but in fact achieve it by a later and different act if both acts can be treated as logically successive or connected within the one continuous course of conduct attributable to or motivated by the same murderous intent - (Thabo Meli (PC)) A preconceived plan is not required in order to treat a series of acts leading to the death of the victim as one transaction (Kumar v R)

Auckland Area Health Board v A-G  - Homicide

facts/issue	ratio
Irreversible condition Man was not breathing himself, wasn't aware of his surroundings etc The family wanted care to stop. Would the medical team be liable of murder if they stop care? Had he died?	Brain stem death = death Irreversible cessation of functioning of the entire brain - including the brain stem.

R v Smith [1959]- homicide

Barrack-room brawl - injured with a bayonet Taken to medical reception - dropped x 2 on way Given the wrong treatment for his condition (punctured lung) = made condition worse = deteriorated and died.  Evidence; other factors reduced chance of V healing from wound  D argued that the treatment was ineffective and had V received proper care he would not have died.

At the time of death the original wound was still and operating cause [having effect at that time] and a substantial cause of death.  Hypothetical circumstance where original wound would not constitute a cause of death:  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. Now codified in Crimes Act s 166. Kills person although the immediate cause of death is treatment, proper or improper applied in good faith.

R v Kirikiri (1982) - homicide

D (estranged husband) shot V in hip, beat V brutally about the face.  Caused swelling so tube was place into windpipe (tracheostomy) = enable her to breathe Tube dislodged during surgery and died from a lack of oxygen D argued medical complication caused death.

Bodily injury in itself of a dangerous nature must be an operating cause of death - although doesn’t have to be final or proximate cause of death.

R v Mckinnon [1980] - homicide

D hit V on head with fence paling - rendered unconscious.  Left V lying on ground unconscious Bleeding nose = asphyxiated (drowned on own blood) Immediate and proximate cause of death = inhaling blood when unconscious.  Argued bleeding nose caused death (it was an accident)

May be more than once cause of death in homicide cases. If more than one injury is inflicted, death can be the result of the original injury if at the time of death the original injury is still an operating and substantial cause of death.

R v Lewis - Homicide

2 attackers separately injured V;  Injuries were only fatal because they were cumulative;  D sought to implicate his brother

Either men could be guilty of homicide if:  D had himself inflicted the injuries on V which would have caused the death irrespective of the part played by his brother or Neither brother inflicted injuries which by themselves would have resulted in V’s death but that in combination they did so cause her death.

R v Blaue [1975] 1 WLR (Eng CA) CM 320 - Homicide

Stabbed through the lung, needed blood transfusion, she refused knowing she would die because receiving blood was against her religion as a Jehovah's witness (then dies). Defence claimed on Appeal: wasn't the stab wound but the refusal to receive BT, broke chain of causation

Held: physical cause of death in this case was the bleeding into the pleural cavity arising from penetration of the lung. Not brought about by any decision made by the victim but by the stab wound “Egg Shell Skull” principle Must take victims as you find them.

R v Renata [1992] 2 NZLR 346 (CA) - Homicide

Assault [wouldn't usually kill another person] Large cyst on kidney - ruptured during assault - caused dea

General rule is that when a person unlawfully assaults another by a dangerous application of force, the assailant is guilty of manslaughter if death is caused even in a most unexpected way' Codified in s 164 Crimes Act - acceleration of death

R v Hallet - homicide

V found dead on a beach; Had been assaulted violently - but died by drowning whilst unconscious; Jury accepted injuries inflicted by Hallett - left him at water's edge (feet in) - drowned whilst unconscious; Discovered that some of v's injuries were inflicted after death… Convicted of murder; appealed arguing that the ocean was the cause of death that he did not cause it. When does a natural event = Novus actus interveins and break chain of causation

Are the acts consciously performed by the accused so connected with the event that they must be regarded as having a sufficiently substantial causal effect subsisting up to that event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event… Is the event natural and foreseeable whether known to the appellant or not, to be such a supervening cause) if so doesn’t break the chain of causation.  ONLY time natural event would break chain of causation = extraordinary and unforeseeable event Because D's conduct left the victim in obvious danger and death was a natural consequence = homicide.

R v Pagett (1983)

(UK) - homicide

Pagett in relationship with a young girl - she left him - went to parents house.  Appellant took V hostage at gunpoint - took to her flat - police in pursuit;  •Police attended - entered darkened building & requested  he drop his gun – refused/made threats to police; •Police retreated to landing above Pagett; •After more threats from Pagett officers saw a figure coming towards them up the stairs –shouted at him to stand still – instead … •Pagett fired his shotgun – &  officers returned fire; •Hostage was shot – Pagett had used v as a human shield. Argued on appeal that the police were the cause of death and thus broke the chain of causation.

a voluntary free, informed and independent intervention/act by 3rd party– NAI NOT NAI if act is involuntary caused by the act of the accused (self defence) Or Act done in legal duty

R v Kennedy - homicide

V asked for some heroin - to help sleep - D gave her a syringe of H; V self-injected - stopped breathing - died; Convicted of manslaughter Appealed; V's act as NAI

Supplying heroin was unlawful - but did not cause V's death (voluntary, informed and independent, victim had all 3) so she caused her own death. Kennedy's actions were not the cause of her death.

R v Tema - homicide

Tema in r/s with v; On v’s request, Tema prepared and gave v GHB on 4 separate occasions over an evening; overdosed & died Charged – manslaughter - appealed

HC:  Noted fundamental principle in R v Kennedy but Distinguished facts from R v Kennedy - said V did not act alone or independently; needed assistance of D - D assisted  v to consume drugs at ‘excessive’ level; Open to jury to find NAI  doctrine was not applicable – i.e. chain of causation not broken by act of v; (Tema’s actions a cause of death of v - homicide).

R v Leaitua - homicide

travelling – NZ; gave mother-in-law cocaine to smuggle into NZ; MIL swallowed packets– ruptured – leaked into system •died – overdose Convicted- appealed

Applied R v Kennedy supplying drugs is unlawful, but was not causative of v’s death; independent action of swallowing them = NAI chain of causation broken – no homicide on facts.  HC - ltd scope for supply to be causative of death - only if the v makes a mistake or acts under compulsion/pressure

R v Tomars [1978] 2 NZLR 505 (CA) CM36 - homicide

3 men travelling on motorbikes -kawakawa -> kaitaia; Stop for a rest - altercation with occupants of a valiant; Hostility between people in the car and the motorcyclists valiant Overtaking the bikers and throwing bottles at them; 2 bikers retreated into a house for safety Sole continuing ride - V At some point turned his lights off, kept riding; Kingham pulled over and attempted to make a U-turn but was hit by car - Killed.

Must be natural consequence of the D’s conduct. In the sense that V’s response could reasonably have been foresee by reasonable and responsible persons in D’s shoes

R v Roberts (UK) - homicide

Girl jumped out of moving car to escape an assault by driver- suffered non-fatal injuries; D charged with assault causing actual bodily harm, ie for causing injuries sustained by girl when he jumped from car;

Prosecution must establish D’s conduct not only caused v to act in way he did; but also  2. V’s act (attempt to escape) was natural consequence of D’ acts:    So - English court put a gloss on the causation test:  to establish causation question is – issue - was the v’s act   ‘…  the natural result of what the alleged assailant said and did, in the sense it was something that could             reasonably have been foreseen as the consequences of what he [D] was saying or doing?’  NB: adds an objective test of remoteness to causation  CM 327 col 2, para 1   if v’s act ‘so daft’, or so ‘unexpected’ & no reasonable person could be expected to foresee it – it is only in a   very remote & unreal sense a consequence of D’s act – it is really  a voluntary act of v that breaks chain of   causation.

Mackie - homicide

Kid running down stairs to avoid being disciplined by the step parent, dislocated neck and dies,  were step-parents liable for death?

Attempt to escape must be the natural consequence of an unlawful act AND  That unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom

R v Kuka [2009] NZCA 572 - homicide

V =  Nia Glassie - 3 years old. Mother convicted of manslaughter; failure to discharge duty under Crimes Act, s 152 Failure to provide 'necessaries' [medical treatment] thereby causing Nia's death; Failure to protect Nia from violence, thereby causing her death

Where person has a legal duty to act and omits to act ‘But for’ the omission death would not have occurred. Omission may not be the sole cause of the death.

R v Lamb [1967] 2 QB 981

Unlawful act CH

•2 young boys – playing with revolver — didn’t know how it worked; •1 pulled trigger – chamber rotated & fired bullet – killed v; •Convicted of manslaughter -  but decision overturned on appeal:

•offence: ‘intentional threat to apply force to the person of another’; BUT absence of intent on facts – so no unlawful act – not manslaughter

R v Myatt [1991]- Unlawful act CH

Driving a power boat & collided with another power boat - blind bend in lake;  Both travelling too fast;  2 people on the other boat died. D charged with manslaughter based on either;  Unlawful act s 160(2)(a) •Rotorua District Lake Waters Control Bylaw 1979 & regulations; •International Regs for Preventing Collisions;    or alternatively Omission (see omissions cases)

What is required to convict a person of culpable homicide by an ‘unlawful act’?  Unlawful act must be an act likley to do harm  Usually is but not always woulf be an act which breaches some law concerned with public safety Not necessary to prove a risk of serious harm. If the unlawful act is dangerous then the risk of some harm is sufficient The unlawful act/omission must be a substantial and operative cause of V’s death (R v McKinnon)

R v Renata [1992] - UA CH

Collective assualt on victim (incl Renata) Assualt caused large cyst of V’s kidney to rupture (not forseeable);  Charge; party - unlawful act of assault causing death of V.  What kind of unlawful act is sufficient for Culpable Homicide?

An assault intended to cause some, even though minor physical harm or hurt to V is within the ambit of s 160(2)(a).

R v Hawkins - UACH

Person with known epilepsy suffered seizure while driving - lost control of car;  Caused accident - fatality Did not hold a motor vehicle drivers’ licence

Act must be both causative and intrinsically harmful.  The causative nature of the unlawful act can be tested by posing the question - would the fatal collision still have occurred if the accused has been the holder of a valid driver’s licence? The obvious answer is yes.

R v Lee - UACH

Lee performed an exorcism/deliverance consented to by V to rid V of demons, evil spirits (4-6 hours); V held down by congregation - Lee sitting/bouncing on V’s chest; applying pressure to her neck;  Evidence; Fractures to sternum and ribs.  Died.  Convicted; manslaughter;  Appeal;  UA - objectively dangerous? When death follows a course of conduct/series of events Are the acts to be looked at in isolation?

Applying pressure to neck is objectively dangerous Artificial to look at the final act causing death in isolation

R v Powell (CA) - UACH

Strikers picketing;  Powell was breaking the strike;  D obstructed by picketers (got alot of abuse by them)  Frustrated and scared;  Moved Toyota Landcruiser forward;  Knocked over woman - died (hit women, head injury killed her when she hit the floor] Charged with unlawful act under s 160(2)(a) UA - Land Transport Act 35(1)(b) driving in a manner that is or might be dangerous to the public or to a person  S 37(1) operating a vehicle on road carelessly What standard of negligence applied ‘ordinary’ or mere negligence or higher standard

Charges could have been laid under s 156 - duties operating dangerous things Manslaughter is an inappropriate crime for acts of ‘mere’ carelessness as distinct from gross negligence or recklessness If an unlawful act requires/involves negligence, carelessness or other omission the charge should be framed in reference to a section in which s 150A applies.[151, 152, 153, 155, 156, and 157] (requiring a higher proof of gross negligence) Parliament ammended s 150A to include unlawful acts that require proof of negligence or is a strict or absolute liability offence. = needs to be a major departure from the standardof care expected of a reasonable person.

R v Myatt [1991] - Omission CH

Driving a power boat & collided with another power boat - blind bend in lake;  Both travelling too fast;  2 people on the other boat died. Charged;   or alternatively Omission without lawful excuse to  perform or observe a legal duty s 160(2)(b) •s 155 CA; (undertaking a lawful act that may be dangerous to lie, use reasonable knowledge, skill and care in doing such act if you don’t do that without a lawful excuse = criminally responsible) •s 156 CA duty of persons in charge of danferous things - take reasonable precautions against and to use reasonable care to avoid dange

what is required to convict a person of manslaughter by omission without lawful excuse to use reasonable care when doing dangerous acts (s 155)  or when in charge of dangerous things (s 156) for the purposes of s 160(2)(b)?   Must be a danger to human life = reasonable possibility of death resulting if reasonable care is not taken Qn: determining whether or not there has been an omission to perform/observe a legal duty to take  reasonable care in any case must be determined by reference to what standard of care? Their discussion is now overridden by s 150A - be a major departure from the standard of care expected of a reasonable person.

R v Lunt [2004] - ommission CH

All 3 adults involved in care of child, sustained injuries over time and eventually dies Prior to new s 151 duty was to provide the ‘necessaries’ of life  Issue; scope of duty to provide ‘necessaries’

Necessaries encompassed goods, services (food, medical treatment etc.) but did NOT include protecting a child from violence  HOWEVER;  S 160(2)(b) says without lawful excuse to perform any legal duty.  Crimes Act s 9 does abolish cl offences, not duties so s 160(2)(b) includes a duty arising at common law.  Duty to for parent to take reasonable steps to protect their child from violence where ti is reasonably forseeable exists in common law

R v Evans- omissions CH

heroin addict, sister gave the addict a bunch of heroin, Evans and her mum after sister became unconscious. Took care but did not call for help. Mother owed duty to the child, but did the sister owe a duty in CL?

created a new duty When D has created or contributed to the creation of a state of affairs which he knows or ought to reasonably know has become life threatening, a  consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise

R v Taylor - omissions CH

Daughter = primary caregiver of mother, who could not move by herself = under care.  Lived in the house of a couple.  Severe neglect (emaciated, in her own faeces, skin almost fused to her clothes, necrotic ulcer) Ambulance called - elderly woman dead;  Died of malnutrition, dehydration … following weeks of ‘intense suffering’

Daughter yes liable for extreme neglect over long period of time. = manslaughter (s 160(2)(b) Couple; convicted for offence of ill=treatment or neglect of a vulnerable adult (s 195A) - Couple were aware of the woman but not how sick she was but knew it was bad because of the smell; less culpable.

R v Scott - omissions CH

6 year old on quadbike on family friend’s farm warning on bike: not for <16 years unable to control – employee noted concerns with Scott D let kids drive off unsupervised - child lost control - drove into a drainage ditch – died

Charge ... S 160(2)(b) – failure to observe duty in s 152 Was it a major departure from standard expected of a reasonable person in place of a parent  ? •would you convict if you were on the jury (qn of fact)?

R v Hamer - omissions CH

Mr H and his wife had been arguing; Wife took some of H’s methadone - 3 x a lethal dose for a person who is not drug addicted; H had previously worked as a nurse – aware of lethal dose – told her to induce vomiting; H understood the consequences and that Narcan could treat it •Said he intended to keep her ‘under surveillance’ but he fell asleep. Timeline: ·1am  wife  took the methadone - both fell asleep; ·12 hours after ingestion -  H woke up; said wife was in a deep sleep  ·15 hrs after ingestion -  H noticed she had cyanosed [blue] lips, laboured breathing; ·16 hrs after ingestion  - H searched internet for info about methadone  overdose; ‘propped  her up’ on pillows; ·17 hours after ingestion H - rang an ambulance. Subsequently died – hypoxic brain injury Can an individuals knowledge/skills/circumstances  be taken into account

Challenged major departure test  Negligence and major departure are both objective tests Accused characteristics are irrelevant to the question of reasonable care (reasonable person) willfulness could be relevant to determining the degree of negligence involved; i.e if there had been a ‘major departure’   … relied on R v Adomako  Proof of any of the following may properly lead a jury to find gross negligence: [CL test similar to ‘major departure’] (R v Adomako) (a)   indifference to an obvious risk of injury to health; (b)   actual foresight of the risk coupled with the determination nevertheless to run it; (c)   an appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider it justifies conviction;   (d)   inattention or failure to advert to a serious risk which goes beyond ‘mere inadvertence’ in respect of an obvious and important matter which the defendant’s duty demanded he should address’. Mr H’s medical knowledge was relevant to knowing that H knew the risk and decided to run it anyway

Perry v R/Te Tomo v R [2018] - threats or fear of violence

Small-time drug dealer;  Asked an associate L to help sell P, she decided to ‘rip him off’ with the assistance of 3 men;  L drive V to designated location - V under influence of P;  Confronted by the men - ran away an hid in Millstream;  When he emerged -  One men held a machete to his throat;  V was punched - fell into the creek Then threatened with a ‘car boot ride’’  V ran toward a shallow levee … 3 men abandoned search after 15 minutes.  V’s body discovered 36 hours later (Drowned despite nose and mouth being above the water) Found in HC that Mr T had caused V’s death by s 160(2)(d).  Natural consequence test? Shoudl jury have been asked if V’s act was a disproportionate response or it was ‘within ambit of reasonableness’

V’s act must be proportionate (not irrational and beyond contemplation of a reasonable person) to D’s act - a response so disproportionate to the D’s act as to be irrational and beyond the contemplation of a reasonable and responsible person standing in their shoes will excuse D at step 3.  Prosecution must prove that the foreseeable act contributed to V’s death.

R v Piri - reckless murder

Piri suspected V had stolen money from an associate Piri and his co-accused took V to a remote area, tied her to a tree on could windy, rainy night (V may have been gagged and tied to the tree half naked);  V died in night - Piri buried body Convicted of murder;

Likely = real or substantial risk

R v Harney - reckless murder

1 in a group of people in a street brawl who got into an altercation with the deceased;  H drew a knife, stabbed V in abdomen; v died Said to police he was ‘aiming for his leg’ & ‘I knew I could have seriously injured V. I wasn’t going to kill him’ Originally convicted with reckless murder.  What is the level of recklessness required? Mere inadvertance to risk = sufficient to be reckless?

S 167(b) requires proof of the A’s actual [subjective] appreciation of risk of death at the material time (means to cause) S 167(a) - requires a deliberate killing whilst;  S 167(b) - requires deliberately taking the risk of killing.  Mere inadvertance sets the bar too low and needs to be a conscious taking of risk. How a jury might infer D’s state of mind from facts;  Drawing of a lethal knife - might be room for jury to take view that it was an instinctive, unthinking reaction in the heat of the moment. Evidence that they had backed off prior to drawing knife - jury entitled to think it was a conscious decision and did use it well knowing the risk.

Shadrock v R (2011) - unlawful object murder

Snatched handbag from woman getting into her vehicle - mall carpark;  D attempted to drive off - V pursued D to his car;  V seen on CCTV running to driver’s side of vehicle… D reversed at speed; D stopped after being blocked by another vehicle, v seen moving to front passenger side of vehicle by witness (Stood at front of car with hands on bonnet);  D accelerated forward - V seen to rapidly step backwards and vehicle ran over her food - she fell, hit head on ground  Suffered non-surviveable brain injuries - died.  Issue: should ‘unlawful object’ in s 167(d) be interpreted (read down) as meaning in pursuit of furthering a criminal offence? When will an act of D that is ‘likely to cause death’ be done ‘for’ the purpose of furthering an unlawful object?

If unlawful object was completed then act can’t be to further the object.  The unlawful object must be a crime [45] The act likely to cause death must be distinct/separate from the unlawful object crime. (commiting a crime = unlawful object) Escaping the scene of theft is not a criminal offence but is essential to the success of a theft that the owner does not recover the property- crime is continuing as he was persisting in his attempt to alienate the handbag from V = sufficiently close/proximate [depends on the facts - up to fact finder to see if offence is ‘continuing’] Consider immediacy in time and place Proximity principle = act committed so closely to the unlawful act [object crime] that it constitutes a continuing part of that unlawful object… it is committed for the unlawful object  Question for the jury in each case whether the fatal act is sufficiently linked to the unlawful object and D knew the act was likely to cause death

R v Piri 1987 CA - unlawful object

Piri suspected V had stolen money from an associate Piri and his co-accused took V to a remote area, tied her to a tree on could windy, rainy night (V may have been gagged and tied to the tree half naked);  V died in night - Piri buried body Convicted of murder;  Appeal Question: What is the meaning of likely for the purposes of s 167(d)

Purpose for d is to classify conduct whereby the accused deliberately risks life for his own unlawful ends If the risk of the death of the V was truly no more than negligible or remote in the offender’s eyes, the stigma of murder should be withheld  Likely = a real/substantial risk that death might well happen.

Thabo Meli v R [1954] (PC) - unlawful object

4 men planned to lure V to rural location - kill V by hitting him over head - make the death look like an accident;  Invited V to a party, got him drunk, struck him on the head with the intention to kill;  Believing V to be dead they rolled him over a low cliff and faked the scene to resemble an accident;  Post mortem revealed that he did not die from head injury - but from exposure Appeal: not murder (only manslaughter) because The blow, though inflicted with the intention to kill did not kill the deceased; and  The later act which actually killed him was done in the belief that it was done to a corpse - i.e. not accompanied by murderous intent (so no concurrence between AR and MR of murder)

One transaction principle May be useful to view conduct as a whole to ascertain whether there was a dominating intention running throughout a series of acts which can fairly be taken as the intention actuating the fatal act (basically saying a legal technicality shouldn’t get you off of murder when that's what you set out to do)

Kumar v R - unlawful object

Prasad’s burnt body found on side of the road.  Post mortem found P was unconscious before being doused with petrol and set alight while he was still alive Background/circumstantial evidence;   Mr P - previously loaned Kumar money (unpaid);  Kumar persuaded Mr P to withdraw a further sum - $30,000 cash from an ATM; AV footage - 1.5 hrs after meeting Prasad 2 men bought 15 L of petrol - petrol cans;  Large purchases after death;  Phone conversations between 2 men (Kumar and Permal) suggested involvement

Bought the one transaction principle to NZ Intended to kill P by unlawful assault but the intention to kill was effected by the later act of burning (time elapsed in between) Affirmed ™ - ‘parties cannot avoid criminal liability simply because they believe mistakenly that they had achieved their object by one act but in fact achieved it later by a different act if both acts could be treated as logically successive or connected within the one continuous course of conduct attributable to or motivated by the same murderous intent  Where there is no immediate concurrence b/t the act which is causative of death and the accompanying intention, the question is always whether the unlawful act inflicted with murderous intent and the later act which results in death are so connected or linked that they can be viewed as one transaction

R v McKeown [1984] 1 NZLR 630 CA - 3 issues + facts

Mr K a man with an intellectual impairment (Mental age 12) is employed by an elderly woman to mow her lawns. 1 night Mr K enters her home while she was sleeping with the object of indecently assaulting her. Before carrying out the indecent assault he beat her around the head (causing a deep laceration), bound her hands together and then gagged her. Her body was found the next day.  Evidence the assault lasted 10-15 mins Postmortem determined that she had died from asphyxia as a result of inhaling blood Issues:  Does the jury need to identify the specific acts of violence that cause death with murderous intent/ knowledge they were likely to cause death Foresight of actual mechanism of death = crown had to show but did not that D knew V was likely to asphyxiate from his actions When the unlawful ovject under s 167(d) involves personal injury, s 167 (d) is not logically avaliable because s 167(d) states the offender must commit the fatal act even though ‘he may have desired that his or her unlawful object should be effected without hurting anyone’

Evidence indicated a series of acts of violence by the accused virtually continuous and within a short space of time… was no evidential basis to suggest that during the brief episode of violence the state of mind of the accused in any significant way. Concurrence of AR and MR for murder - rapid series of facts  There is no principle in law that requires the D to foresee exactly how death might occur - it was open to the prosecution to argue generally that despite his ltd intelligence, the D knew that by attacking and incapacitating an elderly woman he was likely to cause death in some way.  S 167(d) is available when the unlawful object was a different kind of personal injury to the victim that the [separate] acts are likely to cause death Unlawful object: indecent assault Act(s) he knows are likely to cause death; blows, kicks, binding, gagging etc.