Criminal Law Lecture Conduct of Homicide June 2006 Homicide

Homicide

Murder

Infanticide

Manslaughter

Suicide

Statutory

Reckless

Intentional

Constructive Murder

Voluntary

Involuntary

Diminished Responsibility

Criminal Negligence

Provocation

Unlawful & Dangerous Act

Definition - Cokes definition of murder: when a man of sound memory and of the age of discretion unlawfully killeth within any county of the realm, any reasonable creature in rerum natura under the Kings peace with malice afore thought, either express by the party or implied by law, so that the party wounded or hurt etc die of the wound or hurt etc within a year and a day after the same Crimes Act 1900 s18 (1)(a) Murder shall be taken to have been committed where the act of the accused, or thing done 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 immediately after the commission by the accused or some accomplice with him or her of a crime punishable by imprisonment for life or 25 years. (1)(b) Every other punishable homicide shall be taken as manslaughter (2)(a) No act or omission which was not malicious or for which the accused had lawful cause or excuse shall be within this section. (3) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

Elements of Murder (Actus Reus) 1) Death of a human being 2) Caused by the Defendants act or omission 3) During the commission of a crime or attempted commission of a crime carrying sentence of 25 years imprisonment Mens Rea 1) Intention to kill, or intention to inflict grievous bodily harm 2) Reckless indifference 3) If death involved an omission by the accused, such omission must be malicious Human Being Birth - Crimes Act 1900 (NSW) s20 On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not -Hutty [1953] VLR 338 - Martin (No 2) (1996) 86 A Crim R 133 Death - Human Tissue Act 1983 (NSW) - s33 - There has been irreversible cessation of all function of the persons brain; - Irreversible cessation of all circulation of blood in the persons body - Malcherek [1981] 2 All ER 422 Year and a day Rule The Rule Dyson [1908] 2 KB 454 Evans & Gardiner (N0 2) [1976] VR 525 Crimes Act 1900 (NSW) s17A The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person dies after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated

Voluntary Conduct Voluntariness - Ryan (1967) 121 CLR 205 jury to consider entire composite act - Falconer (1990) 171 CLR 30 - Jiminez (1992) 173 CLR 572 while he was asleep his actions were not conscious or voluntary and he could not be criminally responsible for driving the car in a manner dangerous to the public. Onus of Proof 1) Crown must disprove non-insane automatism beyond a reasonable doubt 2) If they do onus is on D to prove disease of mind or mental infirmity on the balance of probabilities Causation Causal Chain - There must be a link between an act of D and death without which it wouldnt have happened Royall (1991) 172 CLR 378 - A new intervening unpredictable act (novus actus interveniens) can break the chain by taking over as the dominant cause of harm Smith [1959] 2 QB 35 - Predictable events do not break the chain Hallett [1969] SASR 141 - Ds act need not be the sole cause of death, it can operate with other causal events but must represent more than a mere de minimus and be a substantial cause Hallett [1969] SASR 141 - A common sense test is also preferred Campbell [1981] WAR 286 Take your victim as you find him eggshell skull principle - Blaue [1975] 3 All ER 446 Vs negligence does not break chain - Blaue [1975] 3 All ER 446 - Butcher (1986) VR 43 Medical Treatment - Malcherek & Steel [1981] 2 All ER 422 - Smith [1961] AC 290 compare Jordan (1956) 40 Crim App R 152 Frightening to Death - Royall (1991) 172 CLR 378

Cases - Jordan (1956) 40 Crim App R 152 - Smith [1961] AC 290 - Hallett [1969] SASR 141 whether an act or series of acts (in exceptional cases, an omission or series of omissions) consciously performed by the accused is or are so connected with the event they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without in the eyes of the law being interrupted by some other act or event. - Blaue [1975] 3 All ER 446 - Evans and Gardiner (No 2) [1976] VR 525 Death is, of course, inevitable. Homicide is really the acceleration of the event. Accordingly, if a victim received from one assailant an injury which would or might ultimately result in death, but before that event occurred he received from another assailant a further injury which accelerated his death, the second assailant would only be guilty of an attempt to commit homicide - Malcherek & Steel [1981] 2 All ER 422 - Royall (1991) 172 CLR 378 1. Substantial cause test 2. Natural consequences test 3. Reasonable foresight of the consequences test 4. Novus actus interveniens test - Jemielita (1995) 81 A Crim R 409 - Moffat (2000) 112 A Crim R 201 - Arulthilakan v R (2003) 203 ALR 259 Omission to perform legal duty Russell [1933] VLR 59 a being under a duty by reason of his parenthood of caring for the safety of the children in his charge and his power, would come under a duty to take steps to prevent the commission of that crime by his wife, and his failure to discharge that duty (standing by and doing nothing), would make him guilty of MS. If he was not merely a silent observer and was encouraging his wife to commit suicide and kill the kids, he would be guilty of murder. Taktak (1988) 14 NSWLR 226 Stone & Dobinson [1977] 1 QB 354 Miller [1983] 2 AC 161