New Zealand Law/Criminal/Homicide

Definition of homicide

• Killing of any person, directly or indirectly, by any means.

Culpable homicide

Definitions of culpable homicide

1. Killing by unlawful act.
2. Killing by omission without lawful excuse.
3. Thru threats, fear of violence, or deception, causing a person to do an act that causes his death.
4. Killing by wilfully frightening a child under 16.
5. Killing by wilfully frightening a sick person.

Types of culpable homicide

1. Murder
2. Manslaughter
3. Infanticide

Liability for culpable homicide

No liability unless death occurs within one year and a day of the cause of death. (repealed)

Murder

1. Culpable homicide is murder if the offender:

(a) means to cause death;

(b) means to cause bodily injury;

(i) that the offender knows is likely to cause death; or

(ii) if the offender is reckless as to whether death occurs;

(c) meaning to cause death or bodily injury as above and by accident kills another;

(d) for some unlawful object, does an act he knows to be likely to causes death and kills, (even if he didn’t want death to be caused).

2. Culpable homicide is also murder if it is committed to:

(a) facilitate treason, piracy, sexual violation, escape, murder, arson, robbery, burglary etc;

(b) facilitate flight;

(c) avoid detection;

(d) avoid apprehension; and

the offender:

(i) means to cause gbh (even if he does not know that death is likely);

(ii) administers any stupefying thing; or

(iii) wilfully stops the breath of any person.

Infanticide

If woman cause death of her child under 10 and it would be culpable homicide but that her mind is disturbed as a result of:

(a) childbirth or lactation;

(b) any disorder caused by childbirth or lactation.

Manslaughter

1. Killing by unlawful act:
2. Any culpable homicide that is not murder or infanticide.

Other Offences

Accelerating Death

A person who causes death “kills” even if the effect was merely to hasten the death of a sick person.

Causing preventable death

A person who causes death “kills” even though death could have been prevented by proper means.

Causing injury where treatment causes death

A person who causes dangerous bodily injury “kills” if death results even if the immediate cause of death is treatment (proper or improper).

Cases

R v Fleeting (No 1)

• Facts

D pushed V who was knocked over by car, D charged with manslaughter.

Counsel claimed no causal link, actus interveniens.

• Held

1. F’s unlawful act not sole cause but real and substantial cause.
2. Act would only qualifying as novus actus interveniens if D’s act spent.

R v McKinnon

• Facts

D hit V with fence paling, knocked him unconscious.

D then dragged V into phone booth.

V drowned into own blood in part because unconscious.

Counsel D may not have had mens rea when injury caused.

• Held

1. Death may result from a number of different causes.
2. If an act is a substantial and operate cause and it is accompanied by the requisite mens rea – sufficient.
3. Jury can conclude that assault was substantial cause.
4. Plus, V would not have drown but for assault.

R v Kirikiri

• Facts

K battered wife. Wife required tube. The tube become dislodged and wife died.

K charged with murder, claimed treatment caused death independently of injury.

Section 166: that everyone who causes bodily injury of a dangerous nature from which death results, kills, even if the immediate cause of death is treatment.

• Held

1. Two identifiable causes of death.
2. There was sufficient evidence from which a jury could conclude battering was an operative cause.

R v Grant

• Facts

To be guilty of manslaugter, death had to be caused by D’s unlawful act.

Crown argued unlawful act was fighting even though fighting requires two or more.

• Held

1. Fighting not the unlawful act but jury could conclude that G was aggressor and therefore perpetrator of assault.

R v Piri

• Facts

D tied V to tree, V died from hypothermia.

D argued Judge should have tried to define “likely to cause death”.

• Held

1. If degree of likelihood critical, jury may need more guidance.
2. The degree of foresight required is real risk, substantial risk, something that might well happen.

R v Yogasakaran

• Facts

Anaesthetist injected patient with wrong drug during surgery having forgotten to look at label.

Section 155 – person who administers medical treatment must do so with reasonable care.

• Held

1. Negligence is sufficient.
2. Gross negligence is not necessary.
3. To prove Crown must (still) prove causation beyond reasonable doubt.

This case is no longer applicable due to secion 150A

R v Myatt

• Facts

Collision on water, D charged with manslaughter.

Crown relied on bylaw limiting speed to 5 knots as unlawful act or omission.

• Held

1. Breach of any legislation could constitute unlawful act but breach must be likely to do harm (although serious harm is not necessary).
2. A greater degree of care is not required from person with greater skill – the standard is still that of reasonable boatie.

R v Ryder

• Facts

Prolonged beating causing multiple serious injury.

• Held

Jury need not agree on precise act causing death if satisfied D caused death with requisite intent.

R v Tuhoro

• Facts

D provide P with shotgun, P killed V in store robeery.

Section 168 - culpable homicide if D intends to cause gbh to facilitate certain crimes.

Judge told jury if D intended to assist and knew that gbh to facilitate robbery likely – then guilty – there is no need to show that def appreciated the risk of killing.

• Held CA

s 168 expressly excludes foresight, a person who inflicts serious injury must accept consequences if death results.

R v Powell

• Facts

P drove car into picket line, killed V.

Judge told jury failure to exercise degree of care of reasonable and prudent driver.

P claimed after R v Yogasakaran, the standard was “a major departure from the standard of care expected of a reasonable driver.”

• Held,CA

1. Agreed that the standard is a major departure from the standard of care expected of a reasonable driver
2. It is artificial to distinguish btwn acts and omissions in the context of negligence.

R v Fenton

• Held

Major departure must be proved on the basis of acts or omissions which individually or in combination caused death.

R v Sturm

• Held,HC

1. Rejected dictionary-based interpretation of stupor and stupefy, in favour of a scientific definition.
2. Stupor is a state in which the patient can be awakened only with vigourous stimuli.