HOMICIDE OFFENCES

Question 1

MURDER

Answer 1

*Cause (applying the tests of factual and legal causation discussed previously)
*The death of another human being (Note: killing an ani-mal is never murder)
*Unlawfully (for example, killing a soldier in a legally sanctioned war would not be murder)
*With the intention to kill or cause grievous bodily harm.
The distinction between murder and other homicide ofences is important, as murder carries a mandatory sentence of life imprisonment. If a jury convicts a defendant of murder, the judge has no discretion but to sentence the defendant to life
imprisonment.

Question 1

types of homicide offences

Answer 1

1. murder
2. manslaughter

Question 2

Physical Act of murder

Answer 2

The defendant must cause the death of a human being. This can be by action or by inaction in the case of a defendant who has a duty to care for the victim.

Question 3

Foetus Not a Human Being for Purposes of Murder

Answer 3

For the purposes of murder, a foetus is not a human being. In English law, a person must be “fully expelled from the womb” and alive.

Question 4

Death Equals Brain Dead

Answer 4

Death occurs when the victim is medically brain dead.

Question 5

Mens Rea of Murder

Answer 5

The mens rea required is either intention to** kill** another human being or intention to cause grievous bodily harm **to another
human being

Question 6

Types of Manslaughter

Answer 6

1. voluntary manslaughter
2. involuntary manslaughter

Question 7

Voluntary Manslaughter
definition

Answer 7

Voluntary manslaughter occurs where the actus reus and mens rea of murder are made out (so when a defendant causes the death of another person and intends to kill or cause grievous bodily harm), but there are partial defences that can reduce the ofence from murder to manslaughter. The two most common partial defences are** diminished re-sponsibility** and loss of control.

Question 8

Diminished Responsibility

Answer 8

*The defendant must demonstrate an abnormality of mental functioning;
*The abnormality must have arisen from a recognised medical condition (note that this is broad and could include depression, Alcohol Dependency Syndrome, or even premenstrual stress);
*The abnormality must have substantially impaired the defendant’s ability to:
*Understand the nature of their conduct;
*Form a rational judgment; or
*Exercise self-control; and
*The abnormality must provide an** explanation** of the killing.

The burden of proof for diminished responsibility is reversed, and the defendant must prove each element to the civil standard (that is, on the balance of probabilities).

Question 9

Loss of Control

Answer 9

*Their role in the killing resulted from a loss of self-control(that is, the defendant must be unable to restrain them-selves);
*The loss of self-control was caused by a** qualifying trig-ger, namely:
* A fear **of serious violence from the victim
against the defendant or another identifed
person; or
*A thing or things done or said which
constituted circumstances of an extremely
grave character and caused the defendant
to have** a justifable sense of being
seriously wronged; a**nd
*A hypothetical person of the defendant’s age and sex might have reacted in the same way.
If a judge is satisfed that there is sufcient evidence that the elements of loss of self-control are made out, the prosecution bear the burden to prove **beyond a reasonable doubt **that
the defendant did not lose self-control. If the prosecution cannot disprove this, the defendant will be guilty of manslaughter rather than murder.

Question 10

What Constitutes a Trigger?

Answer 10

1. no clear definition
2. revenge is not a trigger
3. infidelity alone is not a trigger

Question 11

Involuntary Manslaughter
definition

Answer 11

If the** mens rea of murder is not made out** (so the defendant does not intend to cause death or serious harm), the defen-dant may still be liable for involuntary manslaughter. Unlawful act manslaughter and gross negligence manslaughter are both examples of involuntary manslaughter.

Question 12

Unlawful Act Manslaughter

Answer 12

In the case of unlawful act manslaughter (sometimes known as constructive manslaughter), the defendant commits a** crim-inal ofence** that carries an objective risk to the victim and they die as a result. The act must be:
*Intentional;
*Unlawful (that is, there must be an underlying criminal ofence, such as battery or criminal damage);
*Dangerous; and
*The cause of death (applying the tests of factual and legal causation)

An unlawful act is required to satisfy the ofence; unlawful act manslaughter** cannot be committed by omission.**

Question 13

Gross Negligence Manslaughter

Answer 13

Gross Negligence Manslaughter
Gross negligence manslaughter covers cases in which a de-fendant does not commit an ofence or knowingly take a risk but, rather, acts in such an extremely negligent way that they are criminally culpable.

Elements
*The defendant owes the victim a duty of care;
*The defendant breached the duty of care;
*The breach caused the victim’s death;
*There was **a serious and obvious risk **of death; and
*The breach amounted to gross negligence.

Question 14

Failure to Act May Be Suffcient
gross negligence

Answer 14

Unlike unlawful act manslaughter, gross negligence does not need to be a positive act and can result from failing to act when a duty to assist arises.

Question 15

Breach of Duty
gross negligence

Answer 15

In order to establish a breach of duty, the defendant’sacts are compared to** the standards of a reasonable per-son** under that duty of care with the applicable expertise.