Homicide

Homicide structure

1. Is it Homicide (s 158)

2. Is there culpable Homicide (at least manslaughter s 171)

3. Is it murder (ss 167 and 168)
   
   - for Homicide Q assess if its murder or manslaughter prior to writing in plan

Homicide (s 158) definition

Homicide is the killing of another human being, by another human being, directly or indirectly or by any means whatsoever (broad)
→ Killing means causing death

→ death is brain stem death (auckland area health board v AG)

→ we become human being when completeley separated from out mother → separate offence for unborn child

Explain the crimes act rules for causation (requirement under s 158 Homicide)

killing means causing death, a D still causes death even if they:

• 164: merely hasten the V death (egg shell skull rule codefied)

• 165: if the death could have been prevented → Blau case refuses treatment

• 166: if death results from medical treatment for the injuries that the D inflicted → improper or proper treatment as long as its given in good faith→ i.e V stabbed but death resulted from surgery error → still homicide

• 160: if death results from threats, violence or deception → i.e trick someone into suicide

S&O cause of death cases (common law rules of causation)

• R v Smith: soldier bayonet stab case → injury must be a S&O cause of death → homicide still exists even if someone recieves medical treatment (s 166)

• Mckinnon: D hit V on head, rendered V unconcsious who then chocked on own blood, → NZ court applied smith S&O cause

Cumulative injuries case (common law rules of causation)

• Lewis: two brothers inflicted wounds, V did, death caused by cumulative injuries → Doesnt matter if the injuries you inflicted alone caused death, or whether joint injuries you both caused lef to the death, either party can be guilty for murder in either case

Eggshell skull rule cases (common law rules of causation)

• Blaue: B entered a womans house, stabbed her lung at hospital woman refused medical treatment on religous grounds, jehovahs witness. → Eggshell skull rule applies → s 165 homicide still even if death could of been prevented

• Renata: gang members including Renata hit V several times, unexpectedly, the blows ruptured a cyst which caused V death. → Application of eggshell skull rule

What is the NAI requirement

The novus actus must be “so independent” from an act of the D that the novus actus must be regarded as the cause of death itself

what are the two categories of NAI

1. Natural events (Hallett) → violently assailted V, left him on waters edge, tide came in and V drowned. → ordinary events (tide coming in) not enough, needs to be extraordinary (e.g earthquake)

2. Third party (other human action): Pagett → D kidnapped pregnant partner, police entered, pagett fired at police, police fired back, tragically police shot and killed the pregnant partner, who D had used as a human shield. → NAI caused by a third party must be voluntary, independent and separate form any actions by the accused → police aciton was not voluntary (fired upon, D caused the Police action, police also had legal duty to act because of Pagett)

Also see Kennedy (nz applies this) : victim asked her friend for heroin, Kennedy gave the victim a syringe of heroin, Victim self administered it (free, informed voluntary decision) → A free , informed and voluntary decision by V of sound mind can be a NAI

→ cf Tema (actively assisted intake) ;Leaitua (mother swallowed drugs)

Fear and escape requirement and cases

if D induces the fatal conduct of a V by threats, violence, or deception, then they can still cause death under s 160(2)(d), Must involve:

• A person who by threats or fear of violence or deception

• Causes another person to do an act; and

• That act causes his or her death

• Tomars: establishes natural consequence test → man on moterbike had altercation with valiant car, car followed behind motorbike, while trying to escape the motorbike did a u-turn and was hit by a car → where a V acts because of threat, fear, violence, and this causes their death, the person who used the fear… caused the death.

• Tomars tells us to ask, was V act a natural consequence of D conduct ( V conduct reasonably foreseeable?)

• Roberts: Teenage girl passsenger in car while man attempting to indecently assault her, she jumped out of car because of fear suffered injuries..

When can homicide be broadly culpable (blameworthy) → s 160(2)

Through a unlwaful act; or through negligence. Broken into 5 ways:

1. s 160(2)(a): unlawful act

2. s 160(2)(b): Omission/negligence

3. s 160(2)(c: Both above combined

4. s 160(2)(d): by threats, fear, violence or deception

5. s 160(2)(e): wilfully frightening a child under 16 or sick person

Culpable homicide will either be murder or manslaughter

what are the requirements for culpable homicide by an unlawful act (s 160(2)(a))

• Requires an unlawful act: the AR and MR of that offence must be met, and there cant be a lawful justification (defence).

R v Lamb → case brief, culpable homicide by an unlawful act (s 160(2)(a))

• R v Lamb: 2 young boys playing with revolver, one pulled trigger not understanding how it worked, killed his friend → Lamb lacked required intent, charge failed → AR and MR must be met if it is not then no unlawful act

Renata → culpable homicide by an unlawful act (s 160(2)(a))

• Renata: Gang members beat V rupturing cyst, → an assault intending to cause some harm can be an unlawful act amounting to homicide

Myatt → culpable homicide by an unlawful act (s 160(2)(a))

• Myatt: 2 speed boats travelling fast, led to boat crash (speeding in breach of boat saftey bylaw) → court held for unlawful act it needs to be “inherently dangerous” to produce unlawful act homicide

Hawkins → culpable homicide by an unlawful act (s 160(2)(a))

• Hawkins: Has epilepsy and suffered from seizures, drove car without licence, crashed and killed V, charged with unlawful act of driving without licence. → the unlawful act alleged was not inherenly dangerous (Hawkin acquitted), should of charged here for omission of a duty to take care when in charge of dangerous things

Lee → culpable homicide by an unlawful act (s 160(2)(a))

• lee: Series of actions doctrine, V held down over a long period of time during a exorcism, pastor Lee performed physical assaults, eventually V died, → court affirmed series of actions can be taken as a whole or single transaction, unlawful act does not need to be one isolated act. → series of unlawful acts that are dangerous, does not need to be one act

Powell → culpable homicide by an unlawful act (s 160(2)(a))

• Powell: port workers on strike, Powell didnt want to be part of it wanted to work, driving fowards gradually while blocked, inadvertantly ran over and killed V. → Unlawful act involving negligence cannot amount to inlawful act culpable homicide unless there has been gross negligence (a major departure) from the standard of a reasonable person.

what does s 150A say regarding unlawful acts and omissions of legal duties cannot just be unreasonable

The omission/unlawful act must be a “major departure from the standard of care of a reaosnable person” → this means there cannot just be negligence: there must be gross negligence

What are the key duties under omission to perform a legal duty → s 162(b)

• s 151 → Duty to provide the necessaries and protect from injury a vulnerable person in your care (Taylor → Taylor mother found dead, due to the repeated and ongoing omission of Taylor, was shocking and grossly negligent, and directly caused the death of her mother, but for she would have survived).

• another case for s 151 → Hamer (wife took drugs to prove love, took 17 hours for Hamer to call ambulance) → when assessing whether a omission is a major departure, the test is objective, and the personal characteristics of a D are irrelevant in assessing what a major departure is.

• s 152 → Duty to provide the necessaries and protect from injury your child

• s 155 → Duty of persons doing dangerous acts (e,g spraying chemicals)

• s 156 → Duty of persons in charge of dangerous things (Scott: scott knew about warning on bike of age limit, let 6 year old ride the quad bike on a farm, unsupervised, drove into drainage ditch and died, Major departure)

• examples of dangerous activities: operating bungee jump operaton (collett), operating factory dealing with food (turner), operating firearm (lamb), operating a vehicle (scott, powell, hawkins, myatt).

• s 157 → Duty to avoid omissions dangerous to life (everyone who agrees to perform a life saving act then omits to do it).

what must the omission be under s 160(2)(b)

omission to perofrm a legal duty

1. must be for a legal duty

2. must involve a omission that it a major departure from the standard of a reasonable person (s 150A)

3. must occur without a lawful excuse or defence

4. Must cause the death of the victim

what is meant by without lawful excuse (re omissions)

• withdrawal of treatment of a dying person consistent with good medical practice is a lawful excuse for failing to provide the necessaries of life u s 151 → Auckland Area Health Board v AG

• see also:

• Competent person refusal → Department of corrections v Shaw (hunger strike)

• Persistent Vegitative State → Avodale NHS Trust v Blond (no benefit to continuing life support)

Explain culpable homice by fear, threats of violence, or deception and the key case Perry → s 160(2)(d)

• key issue for this type of culpable homicide is causation: the actions of the D or attacker must directly cause the actions of the V which result in their death,

• The test: Was the V response a natural consequence of the D conduct (Tomars).

• 1) Did D cause V to fear violence

• 2) fear a significant cause of V response

• 3) V response was a natural consequence of D conduct ( reasonably foreseeable)

• 4) V response contributed a significant way to death

• Perry: Perry and others planned a robbery of a man, during the robery the V had a machette held to his throat, the V eventually escaped and hid in a levee with shallow water where he drowned. → For culpable homicide by threats… the V response must have been a reasonable and foreseeable or else it will break the chain of causation

• note: when using s 160(2)(d), can go straight to 160(2)(d) culpable homicide as it discusses causation, no need to discuss causation twice

Explain murder under s 167 and the 4 primary categories

Murder is where there is heightened culpability, s 167 sets out the primary categories:

• s 167(a) → intentional murder → D intends to commit murder (direct or oblique intention)

• s 167(b) → reckless murder → offender sets out to cause bodily injury likely to cause death, and this results in death

• s 167(c] → Transfered Malice murder → offender sets out to cause serious bodily injury or murder to one person but inadvertantly kills another (the intention is transfered over)

• s 167(d) → Unlawful Object Murder → Offender does an act in furtherance of the unlawful object which is likely to cause death and kills someone, even though they did not set out to do this

s 167(a) → intentional murder, What are the requirements and cases

• Requires indirect or oblique intention

• Kumar: V found dead on side of road, had been beaten unconscious, doused with petrol and burnt alive, → “one transactopn” approach adopted from Thabo Meli, if the original murderous intent of a D is connected to the act that ultimately kills the D, then there will still be murder. (treat as one transaction with murderous intent throughout).

s 167(b) → reckless murder, requirements and case

• Established where offender intents to cause to V any bodily injury they know is likely to cause, and are reckless as to whether that injury causes death or not. → this means D must subjectively appreciate the risk of death, and then recklessly proceed with that risk

• Harney: got into a fight with V, drew out a knife, stabbed in abdomen, Harney admitted to police he knew he could have “seriously injured: the V. → reckless murder can be est even where the v only appreciates that the act is likelu to seriously injure someone, (dont need to know its likely to cause death)

• s 167(d) → Unlawful Object Murder, requirements and case

• Murder in furtherance of an unlawful object (crime). Distinct from intended murder or reckless murder as no intent to kill or cause bodily injury is needed to be proven, for this murder you must commit an “unlawful object” or crime, and then carry out another act to achieve this crime which is dangerous to life and results in death

• Shadrock: S snatched a ladys bag intending to drive off with it (unlawful object = theft), when trying to drive off the woman pursued him, shadrock hit her with his car leading to her death.

• Shadrock issue (contemporaneity) → The unlawful object and further killing act needed to be linked in time, Shadrock had completed the theft, for this to be linked the theft still needed to be occuring, the matter was found at trial to be sufficiently linked (to complete the theft he could not let her get the bag back?)

• Shadrock ratio → For unlawful object murder two elements must occur: firstly a unlawful act (crime) and then a act in furtherance of the unlawful act which kills the V. → the two elements must also be sufficiently linked in time (proximity test): offence must be ongoing when the killling occurs.

s 168 (further definition of murder) explained

s 168 sets out there can be murder where a offender means to:

• (a) cause GBH

• (b) administer a stupefying thing

• (c] wilfully stop their breath

• all these things must be done for the purposes of committing or escaping after one of the serious offences listed under s 168. or resisting lawful apprehension.

• s 168 is lower threshold for particular serious felonies, no need to prove murderous intent.