Homicide

Question 1

What the elements for murder in accordance with section 18 of the Crimes Act?

Answer 1

1) - (DEATH OF A PERSON) - The death of the deceased, being a human being.

2) - (CAUSATION OF DEATH) - An unlawful act or omission of the accused which caused the death.
(Actus Reus)

3) - (INTENT TO MURDER) - Such act or omission was done or committed to be don with -
i) reckless indifference to human life
ii) intent to kill or inflict grievous bodily harm
iii) in an attempt to commit, or during, or immediately after the commission by the accused, or by some accomplice with him, of a crime punishable by penal servitude for life or 25 years.
(Mens Rea)

Question 2

What is death defined as in accordance with S33 of the Human Tissues Act?

Answer 2

a) The irreversible cessation of the functions of a persons brain, or
b) The irreversible cessation of the circulation of a persons blood.

Question 3

What is causation and the test for it?

Answer 3

This element relates to the Actus Reus or the physical doing of the criminal act.

It is assessed on the OBJECTIVE TEST without reference to the state of mind of the accused.

Question 4

Is it possible to murder a foetus?

Answer 4

NO - As the end of life must be rived, in the case of a foetus the beginning of life must be proved.

S20 of the Crimes Act states, ‘On the trial of a person for the murder of a child, such child shall be held to have been BORN ALIVE, IF IT HAS BREATHED, HAS HAS BEEN WHOLLY BORN INTO THE WORLD. Left the mothers body completely whether it has independent circulation or not.

Question 5

What is the Prima Facie test for causation?

Answer 5

The BUT FOR test.

BUT FOR the actions of the accused, the victim would not have died. This test is a tool used by the courts to when determine whether a causal link or nexus exists between the accused’s actions and the death of the victim.

Question 6

How do we establish the ‘Prima Facie test for causation?

Answer 6

In order to establish ‘prima facie’ causation we need to satisfy by ‘sine qua non’ (“without which it could not be”); the BUT FOR test.

The death being event (B) is said to have been caused by the actions of the accused being event (A) When we have established sine qua non we have established a prima facie causal chain.

Question 7

What is the egg shell rule?

Answer 7

Accused must take the victim as he finds them (the egg shell skull rule). Failing to accept medical treatment does not rupture the causal nexus

Question 8

What is a novus actus interveniens’?

Answer 8

It is a NEW INTERVENING ACT - which is something that supervenes and takes over as the dominant cause of injury or death.

This means the defence will argue some other act caused the death and not the actions of the accused if they can do this actus reus will not be established = no offence.

Question 9

What is Hallet’s case?

Answer 9

To break the causal chain defence must establish on the balance of probabilities that the novus actus interveniens (intervening Act) is SUBSTANTIAL so EXTRAORDINARY to happen to break the chain of causation (eg/an act of god)

Question 10

What is the mens rea for murder? Three heads of murder.

Answer 10

• INTENTIONAL (with INTENT TO KILL or INFLICT GBH)
• RECKLESS (was done or omitted with RECKLESS INDIFFERENCE to human life)
• FELONY (done in an attempt to commit, or during or immediately after the commission, by the accused, or some other accomplice with him, of a CRIME PUNISHABLE BY PENAL SERVITUDE FOR LIFE OR FOR 25 YEARS)

Question 11

What is an intentional murder?

Answer 11

The accused intended to kill or inflict GBH on the victim and did kill the victim.

Question 12

What is a reckless murder?

Reference Crabbe’s case.

Answer 12

The actions of the accused were PROBABLE to result in death (Crabbe’s Case). A possibility is insufficient; the accused must force that death will PROBABLY result from their actions.

NO NEED TO PROVE INTENT TO KILL

Question 13

What is a felony murder?

Answer 13

Commit a foundational crime being a 25 year/life offence and as a result death ensues during or immediately after.

Question 14

What is Crabbe’s case?

Answer 14

Common law precedent test for RECKLESSNESS in regards to murder. The High Court of Australia ruled that to be guilty of murder, the defendant can be RECKLESS in that they did the act knowing it was PROBABLE (meaning a substantial or real chance) that death or grievous bodily harm would occur as a result of their actions. Not just possible

THE ACCUSED MUST FORSEE THAT DEATH WILL PROBABLY RESULT FROM THE ACCUSED’S ACTIONS.

Question 15

What are some examples of a foundational Crimes with regards to a Felony Murder

Answer 15

Crimes punishable by 25 years or life in prison
S33 discharging firearm etc with intent.

S61JA aggravated sexual assault in company

S66 sexual intercourse child under 10

S96- robbery with wounding

S98 robbery with arms etc and wounding

S112(3) Special aggravated break and enter.

S198 Destroying or damaging property with intention of endangering life

Question 16

What is transferred malice?

Answer 16

The mens rea from one offence can be transferred to another - DOCTRINE OF TRANSFERRED MALICE.

Question 17

What is the difference between murder and manslaughter?

Answer 17

Manslaughter and murder are alike – that each have the same actus reus – the killing of a human being.

You do not have the mens reas for manslaughter. You have the act not the intent.

Question 18

When can a trail judge determine an alternate verdict for murder?

Answer 18

Alternate verdict – manslaughter is an alternative verdict for murder. –Trial judge determines it under four situations

1. Evidence of manslaughter and the issue raised – judge must direct a jury they have this alternative
2. No evidence of manslaughter and the issued is not raised – the judge does not have advise the jury of their power to return a verdict of manslaughter.
3. No evidence of manslaughter and their issue is raised
4. Evidence of manslaughter and the issued is not raised

Question 19

What is a voluntary manslaughter?

Answer 19

This is where there is a killing, which at prima facie amounts to murder but is reduced to manslaughter by reason of mitigating circumstances;

• Extreme Provocation
• Abnormality of the mind.
• Infanticide - 22A the killing of a child under 12 months by mother suffering from PND

Question 20

What is involuntary manslaughter?

Answer 20

Under this heading there is no prima facie evidence of murder. Here there is lesser mens rea than required for murder.

1) The death of a person was caused by an act of the accused.
2) The act was both,
a) UNLAWFUL, and
b) DANGEROUS.

Question 21

What are the two type of involuntary manslaughter?

Answer 21

There are two types of involuntary manslaughter, they are;

• Act or omission by gross negligence, or
  (Criminal Negligence, Gross Negligence, Duty of Care)
• An act which is unlawful and dangerous.

Question 22

What is criminal negligence?

Answer 22

The accused :

1) Was under a duty of car for the deceased.
2) Was grossly negligent (perhaps reckless) and failed thereby to perform that duty;
3) As a result of the failure to perform the duty, whether through act or omission, death was occasioned or accelerated.

The standard of care is the objective test.

Question 23

What is defined as being under the Duty of care of the deceased?

Answer 23

1) Where statue imposes a duty of care for another, (parents, care givers, etc)
2) Where one stands in certain status relation to another, (doctors, police, etc)
3) Where on has assumed a contractual duty to care for another. (Drivers on the road, OH&S, etc)
4) Where one had voluntarily assumed the care of another and so secluded the helpless person as to prevent other from rendering aid. (See R v TAKTAK)

Question 25

Is a body required to prove death? Reference the relevant case law.

Answer 25

NO.
The case of Murdoch v R;
Murdoch was alleged to have murdered Falconie, but no body was ever recovered.

The prosecution is NOT required to prove the finding of a body as a pre-condition to a conviction for murder.

Question 26

How can death be proven?

Answer 26

The fact of death can be proved by DIRECT or CIRCUMSTANTIAL EVIDENCE.

Question 27

If the prosecution intends to prove a death using CIRCUMSTANTIAL EVIDENCE, how compelling should the evidence be to convince the jury?

Answer 27

If CIRCUMSTANTIAL it should be so compelling as to convince a jury that no other reasonable hypothesis could exist other than murder.

Question 28

Explain the case R V TAKTAK ?

Answer 28

Having regard to duty of care; 4) Where one had voluntarily assumed the care of another and so secluded the helpless person as to prevent other from rendering aid.

The accused took a female who had overdosed on heroin, thereby preventing her from obtaining medical treatment. In the morning she was dead.

Question 29

Explain Royall’s case?

Answer 29

The accused will have caused the death if the victim’s fear was WELL-FOUND or REASONABLE, and the escape a NATURAL CONSEQUENCE of the accused’s behaviour.

Question 30

Explain the case R V RYAN?

Answer 30

R v RYAN relates to an armed robbery; during which RYAN loaded and armed himself with a firearm, then tied up a victim during the robbery. RYAN had the firearm aimed at the victim’s head. When the victim turned around, RYAN suddenly pulled the trigger.

RYAN argued it was an involuntary action to pull the trigger and attempted the AUTOMATISM defence. But based on the facts that the accused had prepared himself, the firearm and put himself in that situation it was held that the acts of RYAN caused the victim’s death and was convicted of murder.