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| - Here the defendant used a person as a human shield and they were hit by a bullet and killed by that bullet fired from a police officer. Using the �but-for� test there seems a causal link. But are the D�s actions proximate enough? There is some elasticity in the �but-for� test, otherwise you could keep adding events together and come to ridiculous conclusions on causation. So we look at the proximity of the D�s �causal� action to the result (death). |
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| The D gave a syringe full of heroin to the victim who blasted up then died from an overdose. The D did not cause the victims death as their actions were voluntary and sufficiently independent to remove liability from K |
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| Airedale NHS Trust v Bland |
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Definition
| The victim was in a permanent vegetative state. The doctors and the person�s family brought an application to the court to get the life support turned off. This application was granted at HC COA and HOL, with the HOL saying that this action was not a break in the chain of causation as to remove the D from criminal liability or to impart criminal liability on the doctors. There was no useful purpose in continuing such an artificial life and the doctors were under no duty to take care so there was no necessity for them to continue. The HOL held that turning off the life-support etc was an omission to act but there was no liability for an omission to act if there was no duty to act. There was a substantial body of medical opinion which held there was no purpose in keeping the person alive, so turning off the life support was not a break in the chain of causation. Per Lord Keith of Kinkel - A medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance |
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| Auckland Area Health Board v AG |
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| It was in the best interests of the parties to turn off the life support and there was plenty of medical evidence (8 doctors) who had said it was the best option. The question was whether these actions broke the chain of causation. If it does then the turning off life support is a cause of death and the doctor could be liable for homicide- the victim was described as being in a �state of living death.� It was held there was no duty and the omission is not a cause of death. But Gallavin suggests it is artificial to say this is not a cause of death, surely there is some contribution to the ultimate death of the victim by the doctor. Despite the fact the doctor should not be liable for causing death we should not say he did not cause the death. This same argument could apply if the doctor fails to act when it is pointless to act in any capacity. |
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| Affirmed Trounson. The victim had a haematoma in the brain due to an assault. Life support was removed within a year and a day but, would they have survived longer if the life support had not been turned off? Also, this action of turning off life support did not amount to causing death in this case and was no novus actus. Surely this type of reasoning is a little artificial. Turning off artificial life support is not an intervening circumstance (cause). So it does not matter if they could have continued to live. The medical staff were the technical cause of death but social policy says this is an unacceptable result so the defendant must be liable. Year and a day rule is not a relevant consideration is deciding whether to turn off life support. |
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| Jehovah Witness who was stabbed and did not believe in blood transfusions. D assaulted the victim who refused a blood transfusion which would have saved their life (undisputed) and they died. The stabbing was an operative and substantive cause of death. To what extent do you have to take your victim as you find them? As stupid as they were and as much as we think the result is ridiculous, they should not have to have been put in the position to make that decision other than the D�s actions. The courts held that their refusal to be treated was not a good novus actus. 165 says still liable even if death could have been prevented by proper means. |
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| Only application of s166 in NZ. Here the originla injury seems not to have been a phyiological cause of death. The test was wheter t was an operating cause or merely part of the history. o This is open to the criticism that the jury may find that the chain of causation is broken by treatment directed at the injury notwithstanding that the treatment was negligent. D shot his partner in the hip, then beat her in the head with the butt of the rifle. Needed a tube in mouth for to keep her breathing, rushed her off to operating theatre, the tube fell out, she died. Held there is enough evidence to hold that it was significantly potent to be held as a cause of death. Follows Smith |
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| There was a knifing with the victim going to hospital. The victim had substantially recovered from the wound. A doctor administered a large amount of antibiotics and the victim died (this was clearly gross negligence on the part of the medical staff). The general rule was if death resulted from treatment given to a person who received an injury, the death was still caused by that injury. The court held that the chain of causation had been broken in this case. This case is an unusual case where the actions of the medical staff were grossly negligent and had had a serious impact on the victim (killed them!). Hallet J said there is no general principle to take from this case |
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| Considered Jordan as being exceptional. The actions of the medical profession were so independent of the original act and were so potent in causing death that it merely rendered the D�s actions as insignificant. It could no longer be said that death resulted or was even contributed by the D�s actions |
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| Lord Parker CJ - It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, 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. The treatment could be thoroughly bad and accelerate death but D�s actions still liable for the killing if the injuries they inflicted were a significant physiological cause of death (concurrent causes) |
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| Here the D was driving very close behind the V in order to intimidate. The V swerved and was killed. The courts held there must be some element of foreseeabilty for there to be liability under s160(2)(d). They wanted the result to be a natural consequence of the D�s actions. So the actions of the victim cannot be something so unreasonable it is unforeseeable. This is a purely objective test. n this case the D was tailgating the victim in his car. The victim was on a motorcycle and swerved to try and get away causing an accident and killing himself. The court recognised a reasonable foreseeabilty test which is to be used when applying s160(2)(d); 1. Did the D cause the V to fear violence? 2. Was that fear a more than insignificant cause of the victims actions? 3. Was the action of the victim the kind of action than was reasonably foreseeable by a reasonable person (objective test), given D�s conduct immediately beforehand? 4. Did the actions of the victim cause a not insignificant contribution to their own death? |
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| The mens rea requires an actual intention to kill. |
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| Per Lord Asquith, [Intention] connotes a state of affairs which the party �intending� �does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about� |
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| Per Lord Bridge, [The court is to] avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury�s good sense to decide whether the accused acted with the necessary intent. Believed Hyam instruction amounted to reckless intent Where there is doubt as to whether there was intention, Lord Bridge said you can ask; 1. Objectively speaking, was the result a natural consequence of the actions of the D (in this case probably). 2. Did the D appreciate the result as a natural consequence?- If you have both you have oblique intent which is only evidence of intention. It is really good evidence of intention and the jury is entitled to infer/ find intention but doesn�t necessarily have to. |
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| Per Ackner J - The prosecution must prove beyond all reasonable doubt, that the accused intended (to kill or) do serious bodily harm to Mrs Booth � If you are |
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| R v Hancock and Shankland |
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| Agreed with R v Molony, normally leave intention to jury, but where result was not the desire the jury must be given specific guidance as to foresight and probability. Probability had to be a �high likelihood� before an inference as to intention could be made |
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| Lord Lane CJ, said direction in such cases was not �natural consequence� or �high likelihood� but �virtual certainty�. 1. Was the result a virtual certainty? 2. Did the D appreciate that the consequence was a virtual certainty of their actions? |
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| Trial judge directed the jury that if Nedrick criteria were satisfied it was held the requirements for intention have been satisfied. Court of Appeal said this is wrong, a finding of oblique intention satisfied the requirements for intention, but was not intention. |
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| Affirms the test of virtual certainty in NZ |
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| Once what is required is an appreciation of a virtual certainty of death, and not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law. So it is very close between saying that oblique intention is only evidence of intention and that oblique intention is intention, but there is a difference and it is important. |
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| - Man was assaulted; he fell to ground and was kicked twice in the head by the D, killing him. The D must have been conscious to the fact that that injury was likely to cause death. At the time of the conduct contributing to death he had to have a �conscious appreciation� of the likelihood of causing death |
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| However, �likely� does not mean that D must have thought that a killing was more likely than not, it sufficing that it was recognised as a �real or substantial� risk, as �something that could well happen� or as a risk that was more negligible than remote. Here the D�s tied a victim to a tree trying to extract information about money she owed them. They left here there and she died overnight of exposure but the D�s claimed they did not intend to kill her. The trial judge here did not direct to jury to s167(b) (where intent to cause bodily injury is required) but he could have. So under s167(d) the court discussed the rationale behind application of the section. We must be careful here though as we probably need to be a little more legalistic about what mental element is required than what might be suggested here per Cooke P |
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| The CA affirmed that �reckless� in s67(b) simply means that there must be a conscious taking of the risk of death. They held that it was unwise for a judge to say that it meant careless, since that expression obscures the need for conscious awareness of the risk |
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| D had killed V by stabbing him in a street brawl. It was held that in s167(b) �reckless� could not refer to a failure to give thought to be an obvious risk but rather �means that there must have been a conscious taking of the risk of causing death�. The Court added that the inclusion of the term points to the contrast between (a) and (b); �the one is aimed at deliberate killing and the other at deliberately taking risk of killing |
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| You don�t have to be unanimous in what blow caused the death, just have to prove that there was mens rea during the whole time.- It may not be necessary to identify the particular act which caused death if it can be inferred that, whichever act it was, it was accompanied by murderous MR |
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| A-Gs Reference (No 3 of 1994) |
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| there may be cases where D has no particular victim in mind and indiscriminately attacks a group. If someone is killed, it is neither necessary nor appropriate to rely on para (c), for if D meant to kill or injure anyone she will have meant to kill or injure whoever was in fact killed. Here a man attacked a pregnant women and the foetus was injured, born alive and then died as a child. The courts held malice could not be transferred twice- that is from the women to the foetus then the foetus to the child. In NZ the way s167(c) is worded this case would probably have been covered. But remember that ss167(a) or (b) would have to have been satisfied. The idea is to stop a D from saying �yea I wanted to kill someone but just got the wrong one so should not be convicted.� But a reasonable person must have foreseen the risk. This is a purely objective test, and it does not matter if the D did not foresee any risk whatsoever. The HOL in this case also confirms that the D�s act need not be directed at the person who dies |
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| There needed to be a conscious appreciation that their unlawful actions were likely to result in the death of the D. This was a real and substantial risk. There is a running of a known risk which causes death. |
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| The object was indecent assault, she died however from the gag. (b) might apply, but in putting the gag on, there may have been no intention to cause bodily injury. Good argument that (b) wouldn�t apply, and that (d) would in fact better apply |
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| North P held that the unlawful object postulated by s167(d) had to be something other than personal injury to the victim. In such a case (b) may apply |
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| Arson aim to burn the building down, and a person was within the house and they died. s167 (d) scenario as he did not intend the killing. Here it is not the act that is different, but the object - here the object was to burn the house, not to kill someone, but someone died due to the house burning down. Had his aim been to injure the person but he killed them then it would have been for (b). Had he intended to kill the person by burning the place then it would be for (a) |
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| In Canada the unlawful object had to be a serious crime. It must be an indictable offence than requires MR. In NZ it seems there is no such requirement. We can probably conclude that it does not need to be so serious. Gallavin offers that it could be any unlawful act as that is the purpose of the section. Gallavin suggests the unlawful act could be minor and the safety net for D�s is the recklessness requirement. You would have to be very reckless to be held liable under s167(d) for the commission of a minor act. |
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| killing as a result of the accidental discharge of a gun during a robbery is not murder under s168, although D may be convicted under s167(d) if in presenting the gun he knew that there was a real risk of accidental discharge and consequent death |
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| If death resulted from a continuing act (eg strangulation), it will suffice that the actor had such MR at some point during that act |
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| Concurrence might not be required if death is followed by a series of acts which constituted one transaction� which included act which contribute to death as well as acts which did not, if , before the killing, D acted with MR during part of the transaction. The CA thought that this can only apply if one or more offenders carried out the single transaction in furtherance of a �preconceived plan� Moreover, although the Court accepted that the principle might apply if D had meant to kill, so that s167(a) applied, it held that the principle could not apply when para (b) or (d) was relied on; for their terms require knowledge of the risk of killing at the time of the act which caused or contributed to the death. |
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| For there to be an unlawful act there must be a separate, identifiable unlawful act which is out by itself. This means the unlawful act requires MR for that offence. The killing was not manslaughter by an unlawful act as the was not complete unlawful act with both AR and MR. D had shot and killed a friend when he pointed a revolver at him in jest, nd pulled the trigger in a mistaken belief that the gun would not fire. D�s conduct did not constitute the offence of assault, for he had not intended V to suffer or anticipate the application f force, and on the basis that his act did not involved any other offence, it was held to follow that the killing was not manslaughter by an unlawful act |
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Two people had died as a result of a collision between power boats, on of which has been driven by D. One basis on which manslaughter charges were put was that C had commite the offences agaisnt byaws and regualtions govrning power boat use, and the CA expressed the view that �unlawful act� incuded any act in breach of one of the many provisions of Acts, regulations and bylaws whch create offences. The wide interpretation of unlawful act is qualified by a further requirement that the act must have been dangerous. The 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 there from, albeit not serious harm.�
- It is enough if the reasonable person thinks that harm is likely. The difference here between manslaughter and murder is clear- with murder either intention or recklessness is required. For murder the risk taken must be a more substantial risk and there assessment is a subjective assessment. With MS the risk is lower and the assessment is objective |
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| The question was whether there was a causal link required between the unlawful act and death. It seems there is not. Here there didn�t need to be a link between not having a licence and the death. V died as a result of a fight in a public place with the D, not known whether it was from the D striking him or falling to the ground and hitting his head. Fighting in pulic place sufficient �unlawful act� for manslaughter, however, the requirement that the unlawful act be likely to harm another was recognised |
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| In NZ the requirement that the unlawful act be likely to harm another was recognised in Grant where it was thought that the probable explanation of an earlier decision that a particular instance of causing death by driving without a licence was not manslaughter |
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| the CA did not go further than holding that an assault with intent to cause minor harm was an �unlawful act�, but in Myatt it had accepted the objective nature of the test of dangerousness. Here the D was guilty of MS. The assault was relatively minor but it was aggravated by an abnormal physical condition of the victim. Here is seems a conviction was possible only because there was a risk of some harm. The COA here held that this minor assault was sufficiently dangerous by itself to qualify as an unlawful act under s160(2)(a). |
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| D was guilty of manslaughter when he hit A who fell against V, who died as a result of the injuries caused by this |
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| Even though this is an objective test, it is conducted on the basis of what D knew at the time. No issue of what they subjectively knew, or perhaps what they didn�t know |
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| Made a similar point to Dawson - D broke into an old person�s house and realised the danger of something like a heart attack but carried on anyway. If the D realises the risk (subjectively) but a reasonable person wouldn�t the D should still be held liable |
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| In this case the act of carelessness could also be considered an omission. This case holds that this standard applies to manslaughter with regards to both acts and omissions. So this is essentially the negligence standard for manslaughter- that is gross negligence. A positive act under s150A cannot be anything less than gross negligence/major departure. A line has been inserted into s 150A that effectively codifies Powell. It is clear that the standard of a �major departure� now applies to acts for the purpose of s 160 |
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| Court of Appeal held that the phrase duties 'tending to the preservation of life' in ss151-153 and 155-157 in also used in s145 and there includes duties recognised by the common law as well as by statute, and even, remarkably, the common law version of a codified duty |
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| charge� of, and responsibility for, a helpless person, may arise from the fact that D took control of the helpless person, even temporarily, so that help from others was less likely |
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| Regarding s156, it will be a question of whether D has charge or control of the dangerous thing, and there may be more than one person who shares it . the CA also said that �anything whatsoever� had been �deliberately chosen as a phrase of wise import�, and that it is to be construed, as in the past, as covering things that are dangerous when in operation as well as thin which are inherently dangerous in their static condition. However this does not encourage any gloss on the terms s156, and the better view seems to be that it includes absolutely anything provided that in the circumstances there is a real and reasonably foreseeable risk that it will endanger life it is used carelessly |
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| Many cases will involve things which are dangerous only when in operation, such as trams, gigs, cars and speedboats, or things that are dangerous because of some surrounding circumstances like an unfenced swimming pool in which a child drowns |
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| D was not qualified and he advised the victim to not eat for 3 days which accelerated their death. This was dangerous. |
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| A number of boys drowned in an accident which occurred in the course of activities at a bushcraft camp. D, a camp organiser, was charged with manslaughter, it being alleged that in terms of s157 he had undertaken the duty of ensuring the safety of the boys, and had failed to do so by omitting to repair the handle of the door of the car in which the boys drowned. The charge failed, however, because it could not be shown that any of the boys would have escaped had the handle been repaired. |
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| Provided the English standard for neglience in manslaughter, This amounted to more than- �a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. affirmed in R v Adomako |
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| It was alleged that D was guilty of manslaughter because his negligent driving of a motorcar had caused death. The CA held that the statutory requirement of �reasonable� care in what are now ss155 and 156 mean that the same standard applied as governs civil liability so that �gross negligence was unnecessary |
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| The reason for this higher standard is because there really is a difference from someone acting negligently and someone acting grossly negligently and the level of culpability which should be attached to that. In this case the D administered an anesthetising drug without checking the label. He got it from the correct draw but someone had put the wrong drug in the wrong draw. He was convicted of MS but not handed down a sentence. |
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| On the other hand while the issue of whethe someone is acting negligently is essentially one for the jury, the jury will need to be given guidance in the summing up. This should be tailored to the particular circumstances and should include a reminder of any particular matter which D might rely on as indicating that any negligence there may have been was not gross |
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| D�s infant had died from malnutrition and infection from a condition which developed a few days before death, and it was alleged that D had offended against s151 by failing to obtain medical attention early enough. The CA rejected an argument that D was guilty only if she knew V�s need. It was held that, whether the charge be manslaughter or endangering life, negligence did not provide a �lawful excuse�. The Court added, however, that this was so only if there was negligence �of high degree�; for Storey applies only when the statute defined the applicable standard of care |
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| What would suffice under Barney was described as �negligence of a sufficiently high degree to incur criminal responsibility. There is no doubt that this is the gross negligence required for manslaughter at common law |
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