MURDER AND MANSLAUGHTER Flashcards
What are the 4 examples given in the definition of MURDER in section 167 (where a person dies):
(1) Death is intended
(2) Intends harm likely to result in death and reckless whether death ensues or not
(3) Transfered malice (including being reckless as above)
(4) In the commission of a CRIME, does an act likely to cause death
What 3 situations in s168 Culpibale Homicide is it murder where death may not be intended and may not know death is likely to ensue:
(a) Means to cause GBH in the commission or attempted commission of an offence or facilitate the flight or avoid detection of the offender
(b) Administers any stupefying thing for the same purposes
(c) Stops breath for the same purposes
Define INTENT:
Deliberate act for a specific purpose
If charging for murder under 167, you must prove one of three form of intent:
(1) Intended to cause death, or
(2) Knew death was likely to ensue, or
(3) was reckless that death would ensue
Definition of RECKLESSNESS
Deliberately taking an unjustifiable risk
What is the case law for RECKLESSNESS
Cameron:
Recklessness is established if:
(a) the defendant recognized that there was a real possibility that:
(i) his actions would bring about the proscribe result and / or
(ii) that the proscribed circumstances existed and
(b) having regard to that risk those actions were unreasonable.
To show that the defendant’s state of mind meets the provisions of 167(b), what three things must you establish about the defendant:
(1) That he INTENDED to CAUSE BODILY INJURY to the deceased
(2) KNEW the injury was LIKELY TO CAUSE DEATH
(3) Was RECKLESS as to WHETHER DEATH ENSUED OR NOT
What case law would be used to support the level of RECKLESSNESS sufficient for a charge under sections 167(b) or (d)?
Piri:
…The accused must recognize a real or substantial risk that death would be caused…
(Short beraion)
What is an example of KILLING IN PURSUIT OF AN UNLAWFUL OBJECT s167(d)?
Blowing up a prison wall to liberate prisoners.
What case law is used with s167(d) Killing in pursuit of an unlawful object, to connect the UNLAWFUL ACT CAUSING DEATH with the KNOWLEDGE THAT THE ACT IS LIKELY TO CAUSE DEATH?
Desmond:
The accused must know his UNLAWFUL ACT is LIKELY TO CAUSE DEATH.
(Short version)
In ss66(2) Parties to offences, what elements must be satisfied:
(1) a COMMON INTENTION to prosecute any unlawful purpose
(2) to ASSIST EACH OTHER THEREIN
(3) KNOWLEDGE of the PROBABLE CONSEQUENCE
They are then all guilty of the consequence of what occurred during execution of this common purpose.
In order for a SECONDARY PARTY to be guilty of s168, what must the secondary party know?
The secondary party must know the PRINCIPAL PARTY MIGHT DO THE ACT THAT CAUSES DEATH.
Is a defendant guilty of murder under 168(1)(a) if:
- he does not mean to cause death, and
- he does not know death is likely to ensue
But
- does mean to cause GBH in the commission of any offence in 168(2), and
- death ensues
Yes
In 168(1)(b) what must the offender also be guilty of other than stopping the victims breathing?
This act must be done willingly. They must wilfully to the breathing.
JOINT RESPONSIBILITY
Which is true:
(a) the seconday party knew the death was a probable consequence of carrying out the the primary purpose
(b) the secondary party knew it was a probable consequence that the principal might do an act that would, if death ensued, bright their conduct within the terms of s168
(2)
S172
What is the PUNISHMENT for murder?
Life imprisonment
(Subject to s102 of the Sentencing Act)
Under section 102 of the Sentencing Act, what DISCRETUON does the Judge have when deciding whether to give a life sentence for murder?
102(1) a life sentence is not mandatory if the circumstances of the offender would make it manifestly unjust.
s173 Attempted Murder
What case law is used in relation to the requirement to prove INTENT?
Murphy
In proving an attempt, it must be shown that the accused INTENDED to commit the offence. The Crown must show the accused intended to kill.
In relation to an attempt, what is meant by SUFFICIENTLY PROXIMATE?
Going beyond MERE PREPARATION
It is also known as the ‘all but’ rule.
In relation to an attempt, what else besides SUFFICIENTLY PROXIMATE my indicate INTENT?
Independent acts looked at collectively
173 Attempted murder
What case law looks at collective conduct viewed cumulatively?
Harpur
The court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops. The defendants conduct may be considered in its entirety. Considering what remains to be done is always relevant though not determinative.
In relation to PROXIMITY what question must you ask yourself about the defendants conduct?
Do the facts show MERE PREPARATION, or are the defendants acts IMMEDIATELY or SUFFICIENTLY PROXIMATE to the intended offence?
Simester and Brookbanks present 2 questions, either of which if answered affirmatively would constitute and attempt. What are the 2 questions?
(1) Has the offender gone beyond mere PREPARATION?
(2) Has he commenced execution?
173 Attempted murder
What is the penalty?
14 Years imprisonment
174 Counselling or attwmpting to procure murder.
What is the punishment?
10 years
175 Conspiracy to commit murder.
What is the penalty?
10 years
176 Accessory after the fact to murder.
What is the penalty?
7 years
What case law is used for 176 ACCESSORY AFTER THE FACT TO MURDER?
Mane
For a person to be an ACCESSORY the offence must be COMPLETE.
What are the 2 types of MANSLAUGHTER:
(1) VOLUNTARY manslaughter
(2) INVOLUNTARILY manslaughter
Give an example where MITIGATING CIRCUMSTANCES may take a matter from murder to manslaughter?
Suicide pact
What is INVOLUNTARILY MANSLAUGHTER?
Unlawful killing where there has been no intention to KILL or CAUSE GBH. Yet there has been:
- An UNLAWFUL ACT , or
- GROSS NEGLIGENCE
Is manslaughter CULPABLE HOMICIDE?
Yes
If a killing is the result of a sudden fight, what must be reconsidered:
(1) Possibility of SELF DEFENSE defence
(2) whether there is SUFFICIENT MENS REA
S160(2) MANSLAUGHTER BY UNLAWFUL ACT
What are Newbury and Jones four point test for proving an unlawful act for manslaughter?
The act must:
(1) be INTENTIONAL
(2) be UNLAWFUL
(3) be DANGEROUS
(4) CAUSE DEATH
What sections deal with doing a dangerous act or dealing with a dangerous thing?
155 & 156
If someone dies as a result of CONSENTING to ride on a bonnet of a car, does their consent constitute a defence against MANSLAUGHTER for the driver who acted with NEGLIGENCE in performance of a DANGEROUS ACT?
No. Consent is no defence.
Is death caused during a lawful game or contest, is it normally MANSLAUGHTER?
What circumstances would make this MANSLAUGHTER?
No, not MANSLAUGHTER during a lawful game..
But, if the defendants actions were LIKELY TO CAUSE SERIOUS INJURY, then MANSLAUGHTER may apply.
Is CONTRIBUTORY NEGLIGENCE a defence where the deceased also acted negligently contributing to his own death?
No.
Would negligent driving causing death normally be viewed as MANSLAUGHTER?
What might be a example where this may change?
No, normally there will be suitable charges under the LTA E.g. 36A, 38, 39 and 39AA.
However, perhaps playing chicken with oncoming traffic or trying to beat a train to a crossing may result in MANSLAUGHTER
What test must be applied in cases of GROSS NEGLIGENCE?
The MAJOR DEPARTURE test. This means there was a significant departure from responsibility or duty of care.
Is the test for MAJOR DEPARTURE an OBJECTIVE test or a SUBJECTIVE one?
It is an OBJECTIVE test.
Although the mind of the defendant at the time may still be considered.
What are the 4 examples of ASSOCIATED MURDER:
(1) ATREMPTED murder
(2) COUNSELLING / PROCURING
(3) CONSPIRACY
(4) ACCESSORY after the fact
