2. Homicide Offences

Question 1

Actus reus for murder

Answer 1

1. Unlawful act
2. causing death
3. of a human being
4. Under the King’s Peace

Question 2

Mens Rea for murder

Answer 2

intent to kill or cause GBH
- specific intent offence - cannot be committed recklessly.
- oblique intention can satisfy MR

Question 3

When can the physical act causing murder be an omission?

Answer 3

When the defendant owes a duty to care to the victim

Question 4

Is a fetus a human being for the purposes of murder?

Answer 4

No

Question 5

When does death occur?

Answer 5

When the victim is medically brain dead

Question 6

When does voluntary manslaughter arise?

Answer 6

When actus reus and mens rea of murder are made out, but there are partial defences available to the defendant to reduce their liability

Question 7

What partial defences will reduce murder to voluntary manslaughter?

Answer 7

1. Diminished responsibility
2. Loss of control

Question 8

What are the four requirements for diminished responsibility?

Answer 8

1. abnormality of mental functioning;
2. Arising from a recognised medical condition
3. Substantially impairs their ability to understand their conduct, form rational judgment, or exercise self-control
   * ‘substantial’ - defined as ‘more than trivial.’

AND

4. Provides an explanation for the killing (ie. link between condition and act of killing)

Question 9

Who must prove diminished responsibility and to what standard?

Answer 9

Defendant, on balance of probabilities

Question 10

What are the three requirements for loss of control?

Answer 10

1. Killing resulted from D’s loss of self-control
2. Caused by a qualifying trigger,
   AND
3. Reasonable person test: hypothetical person of the defendant’s age and sex with a normal degree of tolerance and self-restraint might have reacted in the same way

Question 11

Mens rea requirement for gross negligence manslaughter

Answer 11

NONE!

Question 12

What are the two things which amount to a qualifying trigger?

Answer 12

1. Fear of serious violence from victim against defendant or another identified person
2. Something said or done constituting a circumstance of an extremely grave character which gave defendant a justifiable sense of being wronged

Question 13

Who must prove loss of control and to what standard?

Answer 13

Prosecution - beyond reasonable doubt

• However, defence must first convince judge there is sufficient evidence to invite jury to consider defence.

Question 14

What is specifically excluded as a qualifying trigger?

Answer 14

Discovering sexual infidelity - as its self-standing trigger.

Question 15

When does involuntary manslaughter occur and what are the two types?

Answer 15

When the mens rea of murder is not made out

1. Unlawful act manslaughter
2. Gross negligence manslaughter

Question 16

When does unlawful act manslaughter arise?

Answer 16

1. Defendant commits a base offence (w/ requisite MR)
2. objectively dangerous
3. causes death

Question 17

For unlawful act manslaughter, must the risk of death or serious harm be foreseeable?

Answer 17

No - simply risk of some harm suffices for act to be objectively dangerous

Question 18

Beyond proving full MR for the base offence, are any additional requirements necessary for D to satisfy unlawful act manslaughter MR?

Answer 18

No

Question 19

Can unlawful act manslaughter be committed by omission?

Answer 19

No, it requires an unlawful act
- crimes of negligence do not quality

Question 20

When does gross negligence manslaughter arise?

Answer 20

(a) Duty of care owed by D
(b) negligently breached;
(c) causing V’s death
(d) in manner that was objectively foreseeable
AND
(e) circumstances of breach were truly exceptionally bad and so reprehensible as to justify criminal culpability.

Question 21

For gross negligence manslaughter, what is standard is required for an act to be considered ‘objectively forseeable’?

Answer 21

Whether the ‘serious and obvious risk’ of death is reasonably foreseeable, based on what defendant knew at that time.

• risk must be ‘clear and ambiguous,’ not one arising from further investigation.

Question 22

Can gross negligence manslaughter be committed by omission, and why?

Answer 22

Yes, because it is based on a duty, and where there is a duty to act, failure to do so will be a breach

Question 23

In establishing whether duty was breached, to what standards are the defendant’s actions compared?

Answer 23

Standards of a reasonable person with the same duty of care and applicable expertise

Question 24

Can D rely on intoxication amount as defence for murder?

Answer 24

Not if voluntary intoxication.

• D could rely on diminished responsibility if he suffers from Alcohol Dependency Syndrome (medical condition)

Question 25

In considering the reasonable person test for loss of control, will the court take into account D’s bad-temper and extreme sensitivity?

Answer 25

NO - purely objective test, not calibrated to any personal traits other than age/sex of defendant.

• if any specific sensitivity arises from medical condition, diminished responsibility is the appropriate defence.

Question 26

Can loss of control and diminished responsibility be relied on as a defences for attempted murder?

Answer 26

no - only available for offence of murder.

Question 27

Do parties to a criminal enterprise owe each other a duty of care, and thus be guilty of gross negligence manslaughter?

Answer 27

YES - tort defence of illegality does not apply to criminal context.

Question 28

In considering whether D breached their duty of care, are the same tort principles applied?

Answer 28

Yes - both in relation to breach and causation.

Question 29

When will an ‘act’ be deemed unlawful, and thus attract liability under unlawful act manslaughter?

Answer 29

Act becomes unlawful when it is done dangerously or without proper care.

• standard of ‘dangerousness’ is higher than required by base offence

ie. Andrews v DPP - considered that standard of dangerous driving requires that D be ‘so negligent’ and demonstrate such disregard for life that it is properly a crime.
- Same test as GNM

Question 30

What is the standard of foresight required when assessing whether the defendant’s conduct was ‘objectively dangerous’?

Answer 30

‘Some harm’
- test is purely objective.
- D’s subjective beliefs are irrelevant to this part of the offence, but might be considered when considering the MR of the unlawful act.