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Unlawful Killing Flashcards

Includes: - Murder - Criminal Negligence - Attempted murder - Manslaughter

1
Q

s 291 CC ?

A

“It is unlawful to kill any person unless killing is authorised or justified or excused by law.”

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2
Q

What are the 3 elements of ‘unlawful killing’?

A

1) Any person
2) Without authority, justification or excuse
3) Kills

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3
Q

Define: “Any Person” s 291 CC

A

A child fully proceeded from mother’s body alive = capable of being killed, irrelavent if the baby has:
> breathed
> independent circulation
> is still attached by umbilical cord

s 292 CC

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4
Q

Can an unborn baby be “killed”?

A

Yes! If a person does/omits something towards pregnant woman which prevents the child from being born alive.

s 313 CC

  • Does not apply to life-saving operation on mother s 282 CC
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5
Q

Define: “Without authority, jusitification, or excuse” s 291 CC

A

Unlawful!

Authorised = subject to prior approval in Legislation or common law
> Police can use lethal force s 616(4) PPRA

Justified/Excused = Act/omission causing death is not expressly authorised but cirumtances excuse responsibility (e.g. self-defence)

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6
Q

Define: “Kills” s 291 CC

A

Causing the death directly or indirectly by any means whatsoever

s 293 CC

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7
Q

Define: “Dead”

A

“Irreversible cessation of circulation of blood in body of person OR irreversible cessation of all function of the brain of the person”

Transplantation and Anatomy Act 1979 (Qld)

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8
Q

Is a body required for the accused to be charged with unlawful killing?

A

No! If evidence leaves no room for reasonable doubt that the victim is dead.

“No rational hypothesis other than muder.”

R V HORRY

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9
Q

Besides the three elements of ‘unlawful killing’, what must be established?

A

Causation!

Prove what the accused did (or failed to do) directly OR indirectly caused the person’s death.

s 293 CC

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10
Q

Causation - What is the question of law and who decides it?

A

Are the acts/omissions capable of constituting causation?

Determined by the judge.

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11
Q

Causation - What is the question of fact and who decides it?

A

Are the acts/omissions actually committed capable of constituting causation?

Determined by jury.

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12
Q

4 tests to establish causation?

A

1) ‘But for’ test
2) ‘Common sense/natural consequences’ test
3) ‘Reasonable foreseeability’ test
4) ‘Substantial contribution’ test

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13
Q

‘But for’ test?

A

Would the death of the victim have occured ‘but for’ the actions of the accused?

KRAKOUER V WA

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14
Q

‘Common sense/natural consequence’ test?

A

Use common sense to determine if the accused’s act was sufficient to show factual causation?

ROYALL V THE QUEEN

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15
Q

‘Reasonable foreseeability’ test?

A

Would a reasonable person in those circumstances forsee the likely consequences of those actions?

KAPORONOVSKI

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16
Q

‘Substantial contribution’ test?

A

Was the act or omission an ‘operating and substantial cause’ of the consequences?

ROYALL V THE QUEEN

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17
Q

What does KRAKOUER V WESTERN AUSTRALIA say about the ‘substantial contribution’ test?

A

The act or omission does not need to be the sole or even the main cause - must simply contribute in a ‘not insignificant’ way!

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18
Q

“Substantial”?

A

The law is not concerned with trivial matters.

‘de minimis non curat lex’

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19
Q

How can causation be challenged?

A

Determine if there has been a new intervening act which seperates the act from the outcome.

‘novus actus interveniens’

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20
Q

Can a third party break the chain of causation?

A

Only if the act of the third party is so independent of the accused that is becomes the SOLE cause of death.

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21
Q

What is an ‘independent act’ by a third party?

A

A voluntary act by the third party not done for ‘reasonable’ reasons - i.e. not out of self-preservation or legal duty.

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22
Q

If a victim could have lived if given medical treatment, will this break causation?

A

No! Whether they could have been saved by taking precautions or receiving treatment is immaterial.

s 297 CC

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23
Q

If a victim refuses medical treatment, will this break causation?

A

No! The accused takes the victim as they find them (which includes their moral, religious, etc. traits which caused them to refuse treatment)

BLAUE

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24
Q

When can a person be charged with criminal negligence against a victim?

A

Only if they have a duty to help them!

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25
If an accused has a duty to help someone, to what extent must they?
Not everything possible only what can reasonably be done. R V CLARK
26
4 duties under Chapter 27 CC?
1) Duty to provide necessaries 2) Duty of persons doing dangerous acts 3) Duty of persons in charge of dangerous things 4) Duty to do certain acts
27
Duty to provide necessaries?
Person must provide necessaries of life for anyone they have taken into their care who cannot remove themselves from that care AND who cannot care for themselves s 285 CC
28
What are the "necessaries of life"?
What a person needs to survive - i.e. food, shelter, medical aid and remedies R V MACDONALDS AND MACDONALD
29
Person with care of child under 16 must provide necessaries of life under what CC section?
s 286 CC
30
Duty of person doing dangerous actions?
Person doing anything dangerous to human life (including surgery) must: > Have reasonable skill, AND > Use reasonable care to ensure other's life is not endangered s 288 CC
31
Duty of persons in charge of dangerous things?
Person in charge of dangerous things (animate or inanimate) must take precautions to ensure other's lives are no endangered. s 289 CC
32
Duty to do certain acts?
If a certain act must be done to avoid death/injury to others - the person undertaking that act has duty to do that act and will be responsible for any consequences resulting from their lack of performance. s 290 CC
33
If causation is established, what two charges can follow?
Murder or manslaughter depending on the circumstances. s 300 CC
34
'Murder' falls under what CC section?
s 302 CC
35
s 302(1)(a)?
Offender intends to inflict GBH or kill = murder.
36
s 302(1)(b)?
Death occurs as the result of dangerous act likely to endanger life done in prosecution of unlawful purpose = murder.
37
"Prosecution of unlawful purpose"? Does it matter they didn't intend to harm?
"furtherance of, pursuance of, for the purpose of" No! Does not matter if they intended the harm. s 302(3) CC
38
An act "likely"...?
Substantial, real, and not remote chance of result occuring. R V HIND
39
"Dangerous"?
*Objective Test* Would a reasonable person in the same circumstances have recognised their was a real chance the act could endanger life? STUART V THE QUEEN
40
Can the dangerous act = the unlawful purpose?
No! There must be an unlawful purpose further than just the dangerous act. HUGHES V THE KING
41
s 302(1)(c)?
Person intends to do GBH for purpose of facilitating commission of an offence OR their escape after an offence = murder.
42
s 302(1)(d)?
Death occurs as a result of drugging a victim in the course of an offence OR to aid their escape = murder.
43
s 302(1)(e)?
Death occurs by willfully stopping the breath of a person in the course of an offence OR to aid their escape = murder.
44
"Intention to kill"?
Either directly or indirectly intending the outcome.
45
"Direct intention"?
Person has purpose or desire to bring result.
46
"Indirect intention"?
Person knows or foresees that a certain outcome is virtually certain. THE QUEEN V CRABBE
47
"Outcome is virtually certain"?
The outcome must be highly probable NOT just foreseeable. R V WILMOT
48
If the death occured in a different manner than intended, has the offender still committed murder?
Yes! Offender still had intent so still liable for muder. THABO MELI
49
If X intends to kill Y but kills Z - did X commit murder?
Yes! Offender still has intent so still liable for muder. s 302(2) CC
50
What offence falls under s 306 CC?
a) A person unlawfully attempts to kill another b) A person, with the intention to kill, does/omits to do an act it is their DUTY to perform where the likely outcome endangers human life
51
What three things must be shown to establish "attempted murder"?
a) Intention b) Begins to execute intention by overt act indicating intent OR act more than merely prepatory c) Does not fulfil intention so as to commit the offence s 4CC
52
Define "manslaughter"?
Unlawful killing under such circumstances as NOT to constitute murder (under s 302CC) = manslaughter. s 303 CC
53
Is intention necessary?
No! Intention not an element of manslaughter. s 303CC
54
If the offender is indicted on murder, can they be convicted of manslaughter?
Yes! Can be convicted of lesser charge. s 576(1) CC
55
If the offender is indicted on manslaughter, can they be convicted of murder?
No! Cannot be convicted of greater charge. s 576(2) CC
56
Manslaughter is mainly charged in what 2 situtations?
1) Elements of muder established BUT partial excuse/defence reduces to manslaughter 2) Elements of murder NOT established but killing was still unlwaful/not excused
57
'Intentional act' manslaughter?
Intentionally applying force to victim which leads to death (without any defence or excuse).
58
Define "Egg-shell skull" rule?
Offender takes the victim as they find them. R V STEINDL
59
'Negligent' manslaughter?
No intentional force applied to victim SO offender must have owed some duty to prevent harm to victim.
60
Define "negligence"?
Performance that falls substantially below behaviour expected of a reasonable person. CALLAGHAN V THE QUEEN
61
Punishment for murder?
> Life imprisonment (cannot be mitigated or varied under any Act) OR > Indefinite sentence (pt 10 Penalties and Sentences Act 1992) s 305(1) CC
62
Offender is convicted of murder under s 305(2) CC - what factors exist and what is 'life imprisonment'?
Offender has committed more then one murder OR previously convicted of murder. Parole eligible the day after serving 30 years (or longer time under CC section). s 181(2)(a) Corrective Services Act 2006 (Qld)
63
Offender is convicted of murder under s 305(4) CC - what is 'life imprisonment'?
Offender has murdered a police office OR made act/omission leading to the death of police officer. Parole eligible the day after serving 25 years (or longer time under CC section). s 181(2)(b) Corrective Services Act 2006 (Qld)
64
If not murder under s 304(2) or (4) - what is 'life imprisonment'?
Parole eligible the day after serving 15 years (or longer time under CC section). s 181(2)(d) Corrective Services Act 2006 (Qld)
65
"Indefinite sentence"?
Court may impose indefinite sentence on own initiative or on counsel application. s 163 Penalties and Sentences Act 1992 (Qld)
66
What must court be satisfied of before applying indefinite sentence?
(a) Have not been referred to Mental Health Court (for mental health issue) (b) Offender is a serious danger to the community - based on their behaviour, severity of offences, and special circumstances. s 163(2) Penalties and Sentences Act 1992 (Qld)
67
Define "serious danger to the community"?
Court will consider: (a) Exceptional nature of offence (b) Age and character of offender (c) Medical or prison records (d) Risk of serious harm to community w/o indefinite sentence (e) Need to protect the community s 163(3) Penalties and Sentences Act 1992 (Qld)
68
Maximum punishment for 'attempted murder'?
Life imprisonment. s 310 CC
69
Maximum punishment for 'manslaughter'?
Life imprisonment (but NOT mandatory). s 310 CC

Criminal Law (3 decks)

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