Homicide by Omission

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Homicide by omission refers to an instance where the inaction of the defendant has resulted in another's death. According to the definition of murder and manslaughter in s 18 of the Crimes Act, an omission can constitute sufficient actus reus to constitute murder.

As clarified by case law, the test for when an omission is to be considered sufficient actus reus for murder (in addition to the normal actus reus requirements of causation, voluntariness etc) is:

  • The defendant must have owed the deceased a duty of care: Taktak; Stone and Dobinson.[1]
  • A duty of care is owed in one of the following scenarios (: Jones v USA.[2]):
    1. Where statute imposes a duty of care.
    2. Where one stands in a certain status relationship to another.
    3. Where one has assumed a contractual duty to care for another.
    4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

If the present facts match one of these scenarios, a duty of care will be owed and the inaction of the defendant will constitute sufficient actus reus for murder/manslaughter (provided the usual actus reus principles are also satisfied).

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 480-489.

Introduction

[3] Homicide is not always the result of a positive act. Often, an omission (not doing something) can constitute the actus reus of murder or manslaughter. Whilst s 18 of the Crimes Act 1900 provides for murder by omission without qualification, this has been significantly read down in the common law.

  • The entire issue here is whether an omission is enough to constitute the actus reus for murder/manslaughter. The mens rea requirements are the same regardless of an act or omission.
  • The main idea behind a homicide by omissions is that there must have been some duty to act.[4]

This was discussed in Russel:[5]

  • Facts: the defendant stood and watched whilst his wife drowned herself and their children.
  • Held: no duty of care in relation to the wife, but there was a duty of care in terms of the children (to prevent the commission of a crime against them by someone else), and therefore there is a conviction.

And also in Stone and Dobinson:

  • The following three requirements must be satisfied for an omission to constitute sufficient actus reus for manslaughter by criminal negligence:
    1. That there was a duty of care owed by the defendant to the deceased.
    2. That the defendant had been grossly negligent in fulfilling that duty of care.
    3. That the deceased died by reason of this negligence.

And in Taktak:

  • The test for whether an omission constitutes sufficient actus reus is formulated as follows:
    1. The defendant must have owed the deceased a duty of care. Quoting Jones v USA,[6], a duty of care is owed in one of the following scenarios:
      1. Where statute imposes a duty of care.
      2. Where one stands in a certain status relationship to another.
      3. Where one has assumed a contractual duty to care for another.
      4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
    2. The omission alleged was the proximate cause of the deceased's death.
    3. The omission was conscious and voluntary.

It appears that test in Taktak has since been accepted.[7]

  • It is important to note that the only real 'extra'-requirement for an omission to constitute sufficient actus reus is that a duty of care to act was owed.
  • This is because the requirements 2 & 3 (causation and voluntariness respectively) are requirements of a standard act anyway, and are thus not 'extra', more onerous requirements.

Illustrations

[8] The textbook (pages 485-6) shortly describes a number of cases which dealt with homicide by omission. They are merely examples and do not provide any additional law (they should still be read for an example of how homicide by omission occurs in practice and what the defence argues).

Aboriginal Deaths in Custody

[9]

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End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Taktak (1988) 14 NSWLR 226; Stone and Dobinson [1977] 1 QB 354.
  2. (1962) 308 F 2d 307, 310.
  3. Textbook, p. 480.
  4. Instan [1893] 1 QB 450.
  5. [1933] VLR 59.
  6. (1962) 308 F 2d 307, 310.
  7. Taber (2002) 56 NSWLR 443.
  8. Textbook, pp. 485-6.
  9. Textbook, pp. 486-9.
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