Chapter 4: Homicide Offences

Question 1

What is the mens rea for murder?

Answer 1

Intention to kill another human being or intention to cause grievous bodily harm to another human being

Question 2

When will voluntary manslaughter occur?

Answer 2

Where the actus reus and the mens rea of murder are made out, but there are partial defences that can reduce the offence of murder to manslaughter

Question 3

Which two defences apply to voluntary manslaughter?

Answer 3

1. Diminished responsibility
2. Loss of control

Question 4

What four things must a defendant show to display diminished responsibility?

Answer 4

1. The defendant suffered an abnormality of mental functioning
2. The abnormality arose from a recognised medical condition
3. The abnormality substantially impaired the defendant’s ability to:
   - Understand the nature of their conduct
   - Form a rational judgment, or
   - Exercise self control
4. The abnormality provides an explanation for the killing

Question 5

What is the burden of proof for diminished responsibility?

Answer 5

The defendant must prove each element on the balance of probabilities

Question 6

What three things must a defendant show to prove loss of control?

Answer 6

1. Killing resulted from a loss of self-control
2. Loss of self-control was caused by a qualifying trigger:
   - A fear of violence against defendant or another identified person
   - A thing or things done or said which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged
3. A hypothetic person of the defendant’s age and sex might have reacted the same way

Question 7

What is the burden of proof for loss of control?

Answer 7

If a judge is satisfied that there is sufficient evidence that elements of loss of control are made out, the prosecution bear the burden to prove beyond reasonable doubt that the defendant did not lose self-control

Question 8

Is revenge a sufficient trigger for loss of control?

Answer 8

No

Question 9

What is unlawful act manslaughter (aka constructive maslaughter)?

Answer 9

Arises when the defendant commits a criminal offence that carries an objective risk to the victim and they die as a result

Question 10

What are the four requirements for unlawful act manslaughter?

Answer 10

The act must be:
- Intentional
- Unlawful (there must be an underlying criminal offence e.g. battery)
- Dangerous; and
- The cause of death (factual and legal causation apply)

Question 11

Can unlawful act manslaughter be committed by omission?

Answer 11

No

Question 12

What is gross negligence manslaughter?

Answer 12

Gross negligence manslaughter arises when the defendant does not commit an offence or knowingly take a risk, but they act in such an extremely negligent way that they are criminally culpable

Question 13

What are the five elements of gross negligence manslaughter?

Answer 13

1. The defendant owes the victim a duty of care
2. The defendant breached the duty of care
3. The breach caused the victim’s death
4. There was a serious and obvious risk of death
5. The breach amounted to gross negligence

Question 14

Does gross negligence manslaughter require a positive act?

Answer 14

No

Question 15

In establishing whether a person breached their duty of care (gross negligence manslaughter), whose actions will the defendant’s be compared to?

Answer 15

The defendant’s acts are compared to the standards of a reasonable person under that duty of care with the applicable expertise

E.g. reasonable doctor, reasonable car mechanic or a reasonable nurse