Criminal 2: Homocide Offence

Question 1

What are the elements of Murder Generally?

Answer 1

AR
- unlawful (not self defence or death penalty)
- killing (factual and legal causation)
- Human Being
- Under Kings Peace (ie. in England or Wales)

MR
- Malice Afterthought

Question 2

What counts as human being for murder?

Answer 2

NOT
- corpse (dead at moment of brain death)
- unborn child or in process of brith (if stab pregnant woman)

YES
- child after born (alive and capable of independent life) no need for umbilical cord to be cut

Question 3

What is malice afterthought?

Answer 3

Either
- intention to kill (express malice)
- intention to cause GBH (implied malice)

CAN include oblique intention
- Death or serious injury was a virtual certainty as result of D’s action (objective), and
- D appreciated that (subjective)

Question 4

What are partial defences to murder?

Answer 4

Voluntary Manslaughter including:
- diminished responsibility
- loss of control

Involuntary Manslaughter (if lack of malice afterthought)
- unlawful act manslaughter
- gross negligence manslaughter

Question 5

Requirements for Diminished responsibility?

Answer 5

1. Abnormality of mental functioning
   - from recognised medical condition (including Alcohol Dependancy)
2. Abnormality must have substantially impaired D’s ability to either:
   - understand conduct
   - form rational judgment
   - exercise self control

Question 6

Who has burden of proof in diminished responsibility?

Answer 6

On defendant on balance of probabilities

Question 7

Elements for loss of control

Answer 7

1. Defendants act or omission in killing must have resulted from a loss of self-control
   - means unable to restrain themselves (can know what they are doing)
2. Loss caused by Qualifying Trigger
   - Fear: must fear serious violence
   - Anger Trigger: things said/done that constitute circumstance of extremely grave nature and cause D to have justifiable sense of being wronged
3. Normal Person Test
   - A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstance might have reacted in the same of similar way

Question 8

When can loss of control not be used?

Answer 8

• Considered Desire for Revenge (must have time to plan)
• Excuse to use Violence
• Sexual Infidelity

Question 9

Elements for Unlawful (constructive) manslaughter?

Answer 9

The act must be:
- Intentional;
- Unlawful;
- Dangerous; and
- The cause of death (factual and legal causation)

Question 10

Elements of Gross Negligence Manslaughter

Answer 10

• The existence of a duty of care
• Breach of that duty
• That the breach causes death
• That there was a risk of death, and
• That the breach of duty was so bad as to amount to ‘gross negligence’