Criminal Law Flashcards
Elements of Murder: Element 1 – The killing was unlawful
The prosecutor must first establish or prove that the accused did not have a lawful reason for causing the other person’s death. Examples of lawful killings are:
• the use of the death penalty in countries where capital punishment is legal (though this would not be
a lawful killing in Australia as the death penalty is no longer used as a sentence)
• a soldier killing an enemy in battle
• a person acting in self-defence or under duress, and a court considers that action reasonable.
Elements of Murder: Element 2 – The victim was a human being
The victim must be a living person who has been born (i.e. not an unborn baby or an animal).
Elements of Murder: Element 3 – The accused was a person over the age of discretion
The accused must be at least 10 years of age. The law presumes that people under the age of 10 are incapable of forming the intent to commit a crime
Elements of Murder: Element 4 – The accused caused the victim’s death
• accused actions must have contributed significantly and substantially to a person’s death (ie. causation)
eg 1. if a victim is shot and dies two days later in hospital as a result of the gunshot, there is a link.
eg 2. if a victim is left unconscious under a tree after a punch and lightning strikes, causing a branch to drop and kill the victim, there is a break in the causal link.
Elements of Murder: Element 5 – The accused was a person of sound mind
- The prosecution must establish that the accused was a person of sound mind.
- This is a person who knows right from wrong and understands the nature of what they have done.
- The law presumes that a person of unsound mind cannot form the intent to commit a crime (mens rea) because they do not understand what they are doing or they do they know that what they are doing is wrong.
Elements of Murder: Element 6 – There was malice aforethought
To prove murder, the prosecution must prove there was malice aforethought (i.e. an intention to cause serious harm).
• An intention to kill - The accused intended to kill a person (not necessarily the deceased)
• An intention to inflict serious injury - The accused intended to inflict serious injury, but it resulted in the death
• Reckless indifference - The accused knew it was probable that their actions would cause death or serious injury to another person and they were indifferent to this fact
• An intention to assault a person making a lawful arrest (which resulted in that person’s death) - The accused may have had no intention to kill anyone, but they were trying to escape arrest when the death occurred
• An unintentional killing in the process of committing a violent crime - The accused may have had no intention to kill anyone, but they were committing a violent crime (punishable by 10 years in prison or more) when the death occurred
Possible defences to murder: Defence 1 – Self-defence
A person is not guilty of murder if:
• they believed that their actions were necessary in self-defence
• their actions were reasonable in the circumstances as the person perceived
them.
In murder cases, the accused must believe their actions were necessary to protect themselves or another person from death or really serious injury.
Possible defences to murder: Defence 2 – Mental impairment
A person is not guilty of murder if, at the time of the offence, they were suffering from a mental illness and, as a result, they:
• did not know what they were doing because they had little understanding of the nature and quality of
their actions
• did not know their conduct was wrong or could not reason, or think about, their conduct like an
ordinary person.
A successful defence of mental impairment does not immediately result in the accused being released from custody. It is a special verdict of ‘not guilty by reason of mental impairment’.
In these cases, the court will generally impose a custodial supervision order. This order has a nominal term of 25 years and confines the person to a psychiatric facility so appropriate care and treatment can be provided. The court will periodically review the order.
Possible defences to murder: Defence 3 – Duress
A person is not guilty of murder if they act under duress. The defence of duress applies if, at the time of the offence:
• the person has a reasonable belief that:
• a threat of harm exists
• the threat would be carried out unless the offence was committed
• committing an offence is the only reasonable way to avoid the threatened harm
• the person’s conduct is a reasonable response to the threat.
Possible defences to murder: Defence 4 – Sudden or extraordinary emergency
A person is not guilty of murder if they act as a result of a sudden or extraordinary emergency. The person must reasonably believe that:
• there is a sudden or extraordinary emergency
• their actions are the only reasonable way of dealing with the situation
• their actions are a reasonable response to the situation.
In murder cases, the sudden or extraordinary emergency must involve risk of death or serious injury.
Possible defences to murder: Defence 5 – Involuntary actions
Automatism: It is not enough to say ‘I didn’t know what I was doing’. Some external factor had to be the sole cause of the actions. A person may be found not guilty of an offence if they committed the crime:
• while sleeping or sleepwalking
• while suffering concussion
• during an epileptic seizure
• as a result of a medical condition or because of a side effect of the proper use of medication.
Automatism does not mean the person has a mental illness. Rather, the person is in a zombie-like state and ‘out of it’ mentally, but capable of physical acts.
Intoxication
• self-induced intoxication – Intoxication is considered to be self-induced unless it is involuntary or
due to fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress, force, or the effects of proper use of prescription or non-prescription medication. In this situation, the court must compare the accused’s belief or actions to those of a reasonable person who is not intoxicated
• not self-induced intoxication – The court must compare the accused’s belief or actions to those of a reasonable person intoxicated to the same level as the accused.
The role of the law in developing the elements and defences: common law
The definition of murder is still contained in common law, with Section 3 of the Crimes Act specifying the penalty for the crime. That is, all of the elements of murder are not set out in the Crimes Act, but have been established throughout the years by the courts.
The courts had also developed what is known as the ‘felony murder rule’. This rule was that a person who unintentionally caused the death of another by an act of violence could be convicted of murder as if that person
The role of the law in developing the elements and defences: Statute law
Although the elements of murder are contained in common law, various additions or changes have been made to the crime, as well as the defences that are available in murder cases. For example, there is now a statutory intoxication defence, set out in Section 322T of the Crimes Act.
The Victorian Parliament has also had a significant role in changing the law in relation to killings involving family violence and abolishing certain defences.
Trends and statistics - Victoria
statistics show that the homicide rate has generally fluctuated, without any real trend of increasing or decreasing. Between April 2016 and March 2017, of the 237 recorded homicide offences recorded during that period:
• 69 were murder offences, 82 were attempted murder
• 201 were not family related, and 36 were family related.
Trends and statistics - Queensland
Queensland’s records show that between 1 June 2016 and 30 June 2017, there were 134 homicides. Of those, 38 were murder offences, 75 were attempted murder offences and 12 were driving causing death offences.`
