Murder Flashcards
Murder - Crimes Act 1900 (NSW) s 18
A definition:
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
Elements of Murder
an act or omission of the accused
that caused
the death of the deceased
where the act was done:
with reckless indifference to human life; or
with intent to kill; or
with intent to inflict grievous bodily harm (GBH); or
done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
Murder - actus reus
voluntary act or omission of the accused
that caused
the death of the deceased
Murder - mens rea
where the act was done:
with reckless indifference to human life; or
with intent to kill; or
with intent to inflict grievous bodily harm (GBH); or
done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
Constructive Murder
where the act causing death was done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
Thus, the accused can be guilty without intending or foreseeing the probability of either death or GBH.
No specific fault element required other than the fault element necessary to establish guilt of the ‘base’ offence
R v Katarzynski is authority for?
the proposition that ‘the act’ of the accused which caused the death:
May be a complex course of events of which discharge of the firearm is but the final lethal act;
For the purposes of s 18, ‘the act ‘ causing death must be a ‘substantial operative cause of death’, but it need not be the only act.
In Katarzynski the VOLUNTARINESS of the act of firing the weapon was in issue. The jury was instructed that it should consider all the actions of the accused in context, not only the single act of how the weapon discharged. These may include the procurement of the firearm by the accused, his decision to load it, carry it and ultimately present it.
Culpable omission
To be guilty of murder by culpable omission:
the accused must have been in a relationship with the deceased which imposed a legal duty to act; or
have voluntarily placed him or herself in a relationship such that the accused assumed such a duty *(to the exclusion of other people being able to help?)
Royal v R
‘There may be no single cause of death of the deceased, but if the accused’s conduct is a significant cause of death that will be sufficient …’
Although there must be a causal connection between the act and the death, for the purposes of s 18 ‘the act’ causing death need only be a ‘substantial and operative’ cause - it it need not be the only cause.
Human Tissue Act 1983 (NSW)
Example:
A doctor who switches off the life support machine of a person who is unconscious and brain dead would not be guilty of murder because:
The act of withdrawing life support is not considered the act that killed the patient.
s 33 of the Human Tissue Act 1983 (NSW): the patient is already legally dead:
a person has died when there has occurred:
Irreversible cessation of all function of the persons brain; or
Irreversible cessation of circulation of blood inthe persons body.
Homicide
Homicide is the collective term for unlawful killings.
2 categories:
Murder; and
Manslaughter - voluntary and involuntary.
