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Lecture

Week 9 & 10 - Homicide

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Offence charged Alternative offence Murder (ss 302 & 305) • Attempted murder (Code 306) • Manslaughter (Code s 310) • Killing unborn child (Code s 313) • Concealing birth of child (Code s 314) • Dangerous driving (Code s 328A & B) Manslaughter (ss 303 & 310) • Killing unborn child (Code s 313) • Concealing birth of child (Code s 314) • Dangerous driving (Code s 328A & B) Unlawful Homicide: (ADD DISCUSSION OF Royall) Definition/Punishment: WRITE: Unlawful homicide (crime) is defined and created in s300 CC as when a person unlawfully kills another, which is either murder or manslaughter according to the circumstances of the case. Once an unlawful killing has been established it will be characterised as either murder (s302) or manslaughter (s303). Has [accused] committed unlawful homicide? 1. Is [victim] another person? WRITE: [Accused] and [Victim] are clearly persons under the CC. IF Fetus: Previously you could not kill a fetus, as it was only a person after it had proceeded from the mother in a living state (s292 -irrespective of whether the umbilical cord is still attached or not breathing so long as alive when born: Castles), however it is now a crime to kill an unborn child (s313) punished by life. It is a defence if it was during a surgical operation to preserve the mother’s life (s282 – doesn’t say has to be a doctor); Queen v Bayliss (used defence successfully). CASES: • Castles: accused attempted to abort by syringing warm water into uterus of woman who was 22 weeks pregnant, two days later baby born, little prospect of living after two hours. Held: accused could be criminally responsible for acts that occurred prior to birth. • Martin: accused murdered son who died seven months after birth, accused stabbed wife when she was 28 weeks pregnant, although fetus not directly harmed at time, blood flow was reduced from fetus, result was son born with substantial and irreversible brain damage which caused death. Held: criminally liable for acts prior to birth. 2. Has [accused] acted unlawfully? WRITE: [Accused]’s actions will be unlawful unless authorised, justified or excused by law: s291. Here… Authorised: • State executions and killings made legal by the state. Justified: • Police  ‘lethal force’ only where person committed offences punishable by life imprisonment – critical situations – and must be a warning: s616 (5) PPRA • Provisions make no reference to intended harm, but require that reasonable force be used.  Self-defence and defence of a dwelling:s271 & s267  N.B. some provisions exclude force that is intended or likely to cause death or GBH: Compulsion or duress and preventing escape from arrest: s31, s256-8). Excused: Defences or Excuses under the code.  Where the killing was an accident or where the act causing death occurred independently of the accused’s will: s23 N.B. Consent by the victim to the causing of the person’s death will not affect a person’s criminal responsibility: s284. 3. Has [accused] killed [victim]? Q of Fact (Causation) WRITE: Killing is defined as any person who causes the death of another, directly or indirectly, by any means whatever (s293). The prosecution is required to prove a causal connection between the accused’s conduct and the victim’s death. This causation is wider under the CC than that which is required by the common law (Vera Humpheries - because of words ‘directly or indirectly’). CASES: • Vera Humpheries: During abortion, cut wall of uterus, lead to death from infection, argued not cause death under CL reasoning; Held: Causation in CC has wider definition than CL; found guilty. COMMON LAW: (APPLY FIRST) WRITE: CL position is that if the wrongful act or omission is an operating and substantial cause but not necessarily the sole or main cause (Smith), provided it contributed substantially (Padgett; Royall) then causation is satisfied. Here… [apply to facts with analogy to cases Smith; Padgett; Royall] rd If question of 3 party intervening and not covered under below sections then: WRITE: The defence could argue that the chain of causation has been broken by a novus actus interviens. In order for this to succeed the defence would need to show that, the actions of the 3 party, here [3 Party] are free or voluntary; deliberate; and informed, so that it is so independent of the act that it would be a new cause of death. Here… [apply facts with reference to Smith; Padgett; Royall but emphasis on: • Need not be the sole or main cause, provided it contributed significantly • Although other matters, original act was operating and substantial cause of death N.B. The acts will not voluntary if done in performance of a legal duty: Padgett CASES: • Smith: army regiment in Germany, got into a brawl, Smith produced a bayonet and stabbed victim in the st back. Drunk soldiers took him to the 1 aid station with bayonet sticking out, he was dropped, doctors misdiagnosed him and poorly treated. Held: wound still an operating and substantial cause. • Padgett: shot ex-girlfriends father and kidnapped her and her mother, siege developed, Padgett fired on police whilst using her as a human shield, police returned fire and girl died. Held: Padgett’s actions contributed significantly to her death. • Royall: woman fell from 6 floor bathroom window, after a violent argument in which victim was assaulted, a forcible entry into the bathroom and a struggle there. Not established whether Royall pushed, she fell, or jumped. Held: Act of preservation, which causes death, does not negative causation; the accused’s conduct creates in the victims mind a well-founded and reasonable apprehension of danger as a result the victim takes steps to escape. (Don’t apply actions of victim as covered below) IF NATURAL FORCES CASE THEN: WRITE: The defence could argue that the chain of causation has been broken by a novus actus interviens. In relation to natural forces cases this defence is only applicable if the event is truly abnormal or unpredictable (e.g. Tsunami): Hallet. Here… [apply with reference to Hallet] CASES: • Hallet: accused almost killed man, left him unconscious on beach, tide came in and due to injured, unable to move and drowned. Held: Chain of causation not broken. (still liable for criminal negligence) IF ACTIONS OF THE VICTIM CASE THEN: WRITE: The defence could argue that the chain of causation has been broken by a novus actus interviens. In relation to a case in which the victim is said to have acted irrationally the courts will apply the Natural Consequence Test (Royall). • Causation will not be broken if the wrongful act induces a well founded apprehension in the victim; AND a natural consequence of such apprehension is to escape (Royall – she apprehended more hurt if she didn’t jump) • Causation will be broken when, reaction by victim to the wrongful act, was unreasonable or disproportionate (to a reasonable person) UNLESS victim’s reaction was foreseen or intended by accused (Royall). Here… [apply above to facts with reference to Royall]… • Royall: woman fell from 6 floor bathroom window, after a violent argument in which victim was assaulted, a forcible entry into the bathroom and a struggle there. Not established whether Royall pushed, she fell, or jumped. Held: Act of preservation, which causes death, does not negative causation; the accused’s conduct creates in the victims mind a well-founded and reasonable apprehension of danger as a result the victim takes steps to escape. IF MEDICAL TREATMENT CASE THEN: Refusal of Medical Attention: WRITE: The defence could argue that the chain of causation has been broken by a novus actus interviens, however the chain of causation will not be broken when a victim refuses medical treatment (Blaue; s297). Therefore here,… [apply with reference to Blaue]… CASES: • Blaue: accused stabbed victim and pierced lung, victim refused blood transfusion on religious grounds despite told she would die without and would be saved if did. Held: Stabbing was the operating or substantial cause at the time, could not assert victim’s religious beliefs were unreasonable. • Immaterial that the injured person’s death from that injury might have been prevented by proper care or treatment: s297. Recourse to Medical Treatment: WRITE: The defence could argue that the chain of causation has been broken by a novus actus interviens. However there are three requirements for this to succeed (Cook; s298). Here… [apply to facts with reference to Cook]…. Defence won’t succeed if: (1) Jury not satisfied that surgical or medical treatment was the immediate cause of death; or (2) Jury satisfied that the treatment administered was reasonably proper under the circumstances; or (3) Jury satisfied that the treatment was applied in good faith. CASES: • Cook: stabbed wife’s lover in back, doctors unsure of treatment, decided not to give drug, victim made full recovery but died later from not having drug. Held: Cook liable as was reasonably proper treatment and was applied in good faith. Turning off Life Support: WRITE: The defence could argue that the chain of causation has been broken by a novus actus interviens. However the court has held that the turning off of a life support machine is merely stopping the delay of the inevitable and would not act to break the causation (Kinash). Here, [apply to facts with reference to Kinash; Malcherek & Steel]… CASES: • Kinash: victim was beaten up to degree where relied on life support, decision made to terminate life support. Held: Victim died because of injuries sustained, the turning off of the machine did not act as a causing factor. • Malcherek & Steel: two victims stabbed, both put on life support, both considered to be brain dead, life support terminated, both died; Held: The injuries sustained were sole cause of death, life support merely delayed inevitable, and had no contribution to death. IF RESULT OF CRIMINAL NEGLIGENCE THEN: WRITE: Chap 27 imposes duties in relation to the preservation of human life, these are not offences, but if [accused]’s has breached one of these then causation is satisfied (s23). Breach is determined according to community standards and it must be a gross negligence deserving of punishment by state but does not extend to unforeseeable dangers: Bateman. N.B. can be both Causation at law and Negligence: Griffiths (had gun man found dead; either charge of dangerous thing OR link bullet to gun, gun to him). IF Duty to provide necessaries: s285 WRITE: Here, [accused]’s has/hasn’t been charged to provide necessaries to [victim] who unable to withdraw from such charge due to [age/sickness/unsound mind/detention/other on facts] and has failed to provide… [facts and apply to below factors]… N.B. Q of Fact accused has charge of another, except where a law imposes the charge: Macdonald Necessities include: • Medical attention: (Nielson – assessment or treatment for schizophrenic); • Medicine: Macdonald • Such necessaries as tend to preserve life: Brooks • Clothing, food, shelter for children: s122(1) Chilrd Protection Act N.B. Conscientious or religious objection to use of medicine not held to be a defence: Senior Negligence insufficient  It must be so great as to satisfy a jury that the accused was reckless & careless whether the helpless individual dies or not: Nicholls CASES: • Macdonald: lived on remote far, husband and wife in charge of child, 14 year old died of malnutrition; Held: Charged with murder due to consequent death of girl. IF duty of persons in charge of dangerous things: s289 WRITE: Here, [accused] had in his charge, [dangerous thing] and has/hasn’t taken reasonable care and/or reasonable precautions. • Object can be actually/apparently or potentially dangerous: Dabelstein; Hodgetts CASES: • Dabelstein: inserted pencil into woman’s vagina causing haemoraoge, she died. Held: Pencil was a potentially dangerous thing. • Hodgetts: man annoyed at vagrant, so left a can of coke laced with poison, vagrant died; Held: was in charge or thing and therefore responsible for consequences. IF duty of person who has care of child: s286 (1) It is the duty of every p
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