Murder and Manslaughter SA

Question 1

If you are charging an offender with murder under s167 you must show that the defendant…

Answer 1

• intended to cause death or
• knew that death was likely to ensue or
• was reckless that death would ensue

If such intent is not present the offence is manslaughter

Question 2

To show that the offenders state of mind meets the provisions of s167(b), you must establish that the defendant..

Answer 2

• intended to cause bodily injury to the deceased
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not

Question 3

Discussion around intent

Answer 3

The requirement for intent in 72(1) suggests that only an intention to commit the offence will be sufficient and there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.

Therefore, this requirement on the Crown means that attempted murder is one of the most difficult offences in the Crimes Act to prove beyond a reasonable doubt.

Question 4

Acts must be sufficiently proximate to the full offence

Answer 4

Generally to prove an attempt, the defendant must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but” rule.

Question 5

The test for proximity

Answer 5

Simester and Brookbanks suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?

If the answer to either question is yes, then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.

Question 6

Proximity is a question of law…

Answer 6

it is a question that is decided by the judge based on the assumption that the facts of the case are proved.

Question 7

Voluntary manslaughter

Answer 7

Mitigating circumstances, such as a suicide pact, reduce what would be murder or manslaughter, even though the defendant may have intended to kill or cause GBH

Question 8

Involuntary manslaughter

Answer 8

Covers those types of killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause GBH.

Question 9

Killing in a sudden fight, consider…

Answer 9

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

• self-defence
• the requisite mens rea for a murder charge

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

• If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an acquittal
• If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter.

Question 10

Gross negligence

Answer 10

Before a conviction can be obtained for manslaughter where one of the sections referred to in s150A(1) the prosecution must prove a “very high degree” or negligence or “gross negligence”. The expressions “very high degree of negligence” and “gross negligence” are not defined by statute.