I. Homicide: Part 1 a. Rationale: i. Defining the legal subject: and who is a criminal and who is a victim? ii. Look at: 1. Death a.

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1 I. Homicide: Part 1 a. Rationale: i. Defining the legal subject: and who is a criminal and who is a victim? ii. Look at: 1. Death a. Is the victim alive or dead 2. Age: a. Is D really a criminal is he is 10 years old 3. Sanity a. Can they be held accountable if they do not realize the consequences of their actions. b. 18 Murder and manslaughter defined i. (1) 1. (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. 2. (b) Every other punishable homicide shall be taken to be manslaughter. ii. (2) 1. (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. 2. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. c. Death: i. The victim must be alive to begin with 1. V must be human: what does that mean? a. Test for humanness i. whether the entity experiences a separate and independent existence b. Issue with this separate and independent definition i. Separation of conjoined twins ii. Late abortion iii. Termination of a foetus dependent on a machine iv. Unplugging life support machine on which adult is dependent c. Moral issues of guilt arise out of the above definition i. Legal solution (which the judges often use to solve these moral issues and other guilt dilemmas) 1. Through the use of the concept of sanctity of life d. Example of the foetus v/s born or unborn i. Homicide does not cover death of an embryo or foetus in womb. 1. The definition of GBH has been extended to include the destruction of the foetus of a pregnant woman whether or not the woman suffers any harm: s 4 Crimes Act 1900 (NSW) ii. Homicide: A child shall be held born alive if it has breathed, and has been wholly born into the world whether it has an independent circulation or not: s 20 Crimes Act 1900 (NSW) 1. A newborn does not need capacity to breath unaided, just needs 'any sign of life', for example, heartbeat: Iby [2005]

2 2. If a child is born alive but subsequently dies due to injuries sustained in the womb, this may constitute unlawful homicide: Martin (1995) 2. V must be legally dead a. A person has died when there has occurred (s 33 Human Tissue Act 1983 (NSW)) i. (a) irreversible cessation of all function of the person's brain OR ii. (b) irreversible cessation of circulation of blood b. If artificial feeding is withheld from a victim who is unable to live independently of the artificial device, and if, only by virtue of this abnormal dependency, the victim dies, then the accused will not be guilty of homicide because the victim was neither human nor legally alive. c. Anthony Bland case i. Facts: 1. Soccer spectator rendered into vegetative state after a stadium stand collapses; 2. His existence was not separate and independent existence because: a. Entirely dependent on life support; family wish to terminate support b. No cognitive function in a persistent vegetative state c. No possibility of recovery d. Artificially administered food and antibiotics (to combat secondary infections) ii. Issue: 1. Is the victim dead or alive? 2. If the victim is alive, would terminating life-support amount to murder? iii. Reasoning (per Lord Goff): 1. Sanctity of life v/s self-determination concept: a. Bland is alive, or an example of a living death b. Fundamental moral principle of criminal law is the sanctity of life c. Because he is in a living death, and despite having to protect the sanctity of the living, this is not an absolute principle; it is limited by the principle of self-determination (autonomy, separate and independent existence) 2. Where do we draw the line between both? a. Lord Goff proposes two alternatives: b. Act in such a way as to respect the wishes of the patient; or c. Act in such a way as to act in the best interests of the patient consider quality of life as determined by doctors (or the relevant body of competent and professional opinion) 3. Application of the test: a. Here, no wishes were expressed, and the patient has no interests i. Bland s body must cease function because of starvation b. Doctors should act in the best interests of the patient, but because Bland partakes of a

3 hybrid category of existence ( living death ), he has no interests, and can be allowed to die without being prosecuted for murder d. Age i. Rule: 1. Children under the age of 10 are constitutionally incapable of committing a crime. 2. Children between the ages of 10 and 14 are prima facie considered incapable, but this is rebuttable by the prosecution, who must show that the child had moral knowledge in relation to the wrongfulness of his or her action (Veneballs & Thompson v Balurer). ii. Adult courts are principally punitive, whereas children s courts adopt a rehabilitative regime. e. Sanity i. Rule: 1. Sanity is related to age, in that the insane (like children under 10) are incapable of being criminally responsible. 2. The defence needs to show that, at the time of the killing, the accused was morally insane (psychopathy alleviates criminal responsibility). ii. Procedure: 1. Meaning of insanity is primarily legal 2. Burden of proof rests upon the defendant to prove insanity beyond reasonable doubt 3. This standard of proof is difficult to meet 4. Proving insanity involves a special procedure, invoked by a plea of unfit to plea iii. Consequence: 1. An accused who is acquitted on the basis of insanity will be confined to a psychiatric asylum. f. Jurisdiction: i. The crime is predicated upon the prohibited consequence (the death), so the place at which the consequence took place is the focus of the jurisdictional enquiry 1. Ward v R: a. A homicide occurred by means of a gun fired across the Murray river such that the bullet was fired in Victoria and the victim was killed in New South Wales b. The prohibited consequence of the act of killing (the death) occurred in New South Wales, so a NSW court has jurisdiction to decide the case. g. Murder: i. Murder is a statutory offence with a maximum penalty of imprisonment for life or 25 years (s18(1) (a)). The standard non-parole period is 20 years unless the court decides that there are reasons for setting a different period and records its reasons for doing so (s54b(2), (4)). ii. ACTUS REUS: 1. All of the four following elements must be proven: a. An act or omission causing death. b. Consequence of death. c. Causation. d. Voluntariness. (s18(1)(a)). iii. MENS REA: 1. One of the four following elements must be proven: a. Intention to kill b. Intention to inflict GBH c. Reckless indifference to human life. d. Constructive murder (s18(1)(a)).

4 h. Voluntariness i. Rationale 1. Every act is voluntary; if it is not voluntary, then it is not an act at law ii. Distinction between voluntariness and intent 1. These concepts are not the same (per Barwick CJ in Ryan 2. Per Barwick CJ in Ryan: a. A mental state of voluntariness is a will to act (pertains to actions) b. Intention is the way a will to act is expressed (pertains to consequences) c. However, it has also been noted that this distinction is so fine as to disappear in some cases (O Connor) 3. An act is a bodily movement; it does not involve the mind a. The act merely consists of a particular set of muscular/bodily movements b. The movement is provoked by a mental element (a will) 4. Voluntariness therefore equals a will to act 5. However, will is not a mental state; it has nothing to do with mens rea (instead, it is concerned with consciousness) a. Will is just concerned with a particular bodily movement b. The principle of voluntariness links action to will i. Cf intention: mental state which expresses the will 6. Where there is a disconnect between will and conduct, this is suggestive of involuntariness a. For an act to be involuntary, it must be a muscle spasm without going through mental process (this is a very narrow application). i. For example, reflex actions, epileptic fits, unconscious actions, sleep walking (being asleep), having heart attacks, startle responses (eg when someone scares you). 7. Intent relates to knowledge of a consequence, while voluntariness refers to the bodily action which happens to bring about the consequence. However, there is some overlap. a. Thus, in order to prove intent, voluntariness generally needs to be proven. b. It is the act which must be willed, though its consequences may not be intended. c. Voluntariness is not so much at the level of consciousness, but at the level of the body. iii. Ryan v R (1967) 121 CLR Facts: the accused was robbing a store. He was pointing a gun, loaded and cocked towards a store attendant. Attendant made sudden movement, gun discharged in an alleged reflex movement. 2. Held: in determining voluntariness, the court looks at the whole context of acts, and the probable consequences of those acts (ie, not just the startle moment). As such, when the relevant sequence of acts leading up to that point is viewed holistically, it is evident that a voluntary chain of events caused the death. 3. The man's was fully conscious in pointing a loaded gun with his finger on the trigger. He cannot use an 'involuntariness' argument when he then gets startled and presses it - he consciously put himself in that situation. 4. Rv Murray: a. Held: i. the 'act' in question should not be viewed too narrowly (eg, the actual pressing of the trigger with the finger). ii. The act is discharging the loaded shotgun 1. It is not an individual act or single 2. that comprised a number of different movements: loading the gun, cocking it, presenting it, firing it.

5 i. Causation i. Rule: 1. The normal test of causation is whether A s conduct is an operating and substantial cause of V s death. a. It need not be the sole/main cause (Royall) b. Sufficient that there is proof beyond reasonable doubt that death was caused by the total effects of the accused's acts (Carrancega) c. Immaterial that the immediate cause of death is 1 or 2 steps removed from the accused's acts/omissions. (Royall) ii. Causation test: 1. Substantial cause test a. Hallet case: i. Fight with victim in water; D left the beach; V drowned; Cannot say that V was killed by the sea ii. Was the A s act an operating and substantial cause of V s death? Substantial cause test b. Applying this test in R v Jordan: i. Facts 1. V dies 1 week after being given a drug (to which he is obviously allergic) as part of his treatment for a stab wound occasioned by A 2. The allergy was so obvious as to make the administration of the drug in question an instance of palpably bad medical treatment ii. Reasoning 1. If medical treatment is palpably bad or abnormally wrong it will break the chain 2. Akin to gross negligence, this will only occur in the most extreme cases, and is very rare iii. Decision 1. As the treatment was palpably bad, the causal chain between A s stabbing of V and V s death is severed and A is not liable for V s death 2. Natural consequence test a. Royall case: i. Facts ii. Issue 1. Is A causally responsible for V falling from the window and being killed? iii. Reasoning 1. There are three possible causes for V falling from the window: a. A pushed her i. Causation obvious b. V jumped out of fear/to escape A i. Problematic c. V retreats from A and falls i. Causation established since retreating would not have been voluntary and A s conduct would have been an operating and substantial cause 2. A natural consequences test is formulated to determine whether V s jumping from the window is caused by an act of the accused:

6 a. The act needs to be intrinsically evident (or inherently unlawful per Brennan b. V s apprehension of the harm must be wellgrounded or reasonable (per Mason J) c. V s action or mode of escape must be reasonable (ie, proportional) to the threat posed by A s conduct 3. Natural consequences test: a. Does not use the word foresight, but reasonable foresight of V s death is implicit in the test b. Removes implicit dependence upon V s state of mind (by the use of objective qualifiers on reasonable or proportionate conduct) c. Reasonable is determined by reference to the objective circumstances; however, it is not a reasonable man standard i. Use logical deduction from the facts and consider possible modes of escape or reactions by V ii. The examination does not look at what everyone else would do; rather, whether what V did was reasonable in the circumstances iv. Decision 1. V s apprehension of harm was reasonable: a. V had been verbally and physically abused by A prior to going into the bathroom b. Evidence suggested that: i. A had hit V, possibly with an ashtray ii. A had been in the bathroom iii. A had been banging on the door iv. There was a history of domestic violence in the relationship 2. V s response to the risk of harm was proportionate: a. The windows was the only mode of escape (since A was approaching from the door) b. However, it there were multiple modes, one might be less dangerous/unfounded than another 3. Liability for death may be imposed even though it was not intended by the accused 4. Foresight of death is not a test of causation, but foresight links recklessness and mens rea 5. Because V s attempt to escape from A by jumping out the window was a proportional reaction in response to a well-grounded fear of harm, A is liable for V s death iii. Subsequent Intervening Acts 1. Rationale: a. It may help to visualise legal causation as a line connecting the act of the accused and the death of the victim. If this line is broken, the accused will not be liable for the prohibited consequence of death. b. Intervening causes will not break the chain of causation where the acts are so causally connected with the event that they must be regarded as having a sufficiently substantial causal effect. 2. Possible intervening acts

7 a. Act of a third party (eg, a stranger rolling the victim into the ocean in Hallett; medical situations involving doctors) i. It is necessary (but not sufficient) for the intervening act to be voluntary b. Nature i. Exceptional or freak acts of nature (eg, a tidal wave or earthquake) will break the chain of causation ii. Assessment of what constitutes an exceptional natural circumstance is objective it does not depend on A s knowledge of the circumstances iii. Exceptional acts must be, by definition, exceptional, and cannot be ones that occur regularly or with some degree of normality c. Acts of the victim i. Eg, waking up, wandering in the water for a swim, and subsequently drowning ii. The act must be performed voluntarily (ie, willingly) and with full consciousness 1. (and not because of pressure or harm caused by the accused); 2. cannot be only partially conscious (eg, slumbering halfunconscious into the water and drowning) iii. Fright and self-preservation: The victim tried to escape of a threat of harm: Royall [1991] 1. V must act reasonably a natural consequence of A iv. The victim refused medical treatment due to religious belief: Blaue [1975] 1. An exception to the voluntary requirement where the causal chain may not be severed by a seemingly voluntary choice made by the plaintiff not to undergo surgical treatment on account of idiosyncratic religious beliefs d. Medical treatment i. Chain of causation broken if treatment is palpably bad as evaluated by the medical profession ii. Liability of the medical profession 1. Treating a patient against wishes competent patients a. Adult of sound mind is entitled to refuse medical treatment (St George) b. A doctor insisting on carrying out life-sustaining medical treatment against the wishes of a patient is guilty of battery unless a court acts in its parens patriae jurisdiction and authorises treatement (Royal Alexandria). 2. Respecting a patient's wish to continue treatment: competent patients a. A doctor contrary to patient's wishes and with intention of terminating life, removed artificial nutrition and hydration keeping him alive murder (R (Burke)) 3. Withholding and discontinuing treatment: incompetent patients a. Parens patriae jurisdiction of NSWSC to protect the right of an unconscious person to receive ordinary, reasonable and appropriate (as opposed to extraordinary, excessively burdensome,

8 j. MENS REA i. Intent intrusive or futile) medical treatement, sustenance or support (Northridge) b. Airedale (UK): V was a vegetable; no recovery. D withheld artificial feeding & drugs, V's parents supported. i. Where V is incompetent, decide whether it is in the best interests of V to continue treatment. c. Consensus building approach involving the doctors and family, with patient's bests interests put first. i. As a last resort, NSWSC invokes parens patriae e. Blaue: i. Facts 1. V is raped by A, and sustains significant blood loss; she refuses a blood transfusion on account of her religious beliefs (she is a Jehovah s witness) 2. V dies as a consequence 3. She probably would not have died if she had, as per the doctors advice, elected to have a transfusion ii. Issue 1. Did V s refusal to undergo treatment constitute a novus actus interveniens and break the chain of causation between A s act and V s death? iii. Reasoning 1. A s must take their victims as they find them; this includes religious beliefs or other idiosyncrasies (characteristics) 2. It would be paradoxical to expect V to stop being herself in order to save herself iv. Decision 1. V s refusal to have the transfusion was not truly voluntary and thus cannot be regarded as a novus actus interveniens 2. Therefore, A is criminally responsible for V s death f. Padgett case: i. FACTS: 1. Human shield case: accused fires at police whilst holding his girlfriend in front of him as protection 2. Police retaliate, shooting (and killing) the girlfriend (shield) ii. Issue 1. Is A causally responsible for the death of his girlfriend? iii. Reasoning 1. In order for the actions of the police to constitute a novus actus interveniens, they must be voluntary 2. However, they are not: to retaliate when fired upon is an instinctive and thus involuntary response to A s conduct iv. Decision 1. There is no break in the causal chain by the acts of the third party police officers, and 2. A is the cause of V s death

9 1. Subjective: purpose or desire 2. Difficult to prove: need confessions/admissions extracted by police ii. Recklessness 1. Subjective: foresight as to death or grievous bodily harm 2. Less difficult to prove than intent, but burden still high: need to collate a set of behaviours/facts which give rise to a circumstantial inference of recklessness iii. Negligence 1. If neither recklessness nor intent can be made out, the prosecution must drop back to negligence, which reduces the charge to one of manslaughter 2. Objective: risk of death needs to be that which is foreseeable by a reasonable person k. Intent i. Rule: 1. Prosecution must prove that the accused intended death to result from their conducts: La Fontaine v The Queen [1976]; Crabbe (1985) 2. Motive for murder does not have to be proved a. However, motive evidence is admissible to show the accused possessed the requisite MR, i.e., intention: Plomp v The Queen ( Transferred intention occurs where the accused intends to kill a certain person and commits the AR but kills another: Saunders v Archer (1575) a. Saunders & Archer v R (1575) UK: i. Facts: 1. Saunders ( S ) intends to murder his wife 2. S consults Archer ( A ), who suggests that S use a poisoned apple 3. A obtains poison, which he provides to S 4. In A's absence, S gives his wife the poisoned apple 5. S wife eats part of the apple, but then gives the remaining portion to their daughter 6. S stood by and watched, but did not intervene, fearing detection 7. S daughter dies ii. Issue: 1. Is S liable for the murder of his daughter, despite intending to murder his wife? iii. Decision: 1. S is found guilty of murdering his daughter despite only intending to kill his wife 2. A is not guilty as an accessory ii. Rationale: 1. Accused may have either the intention to kill s18(1)(a) or cause GBH (s4 Crimes Act) 2. Intention is the mental state that attaches to an act done by the accused with the purpose of killing or causing grievous bodily harm. a. Synonyms include: purpose, desire, wanting to bring about. 3. Intention arises in situations where the accused acts with knowledge that at least the virtually certain result of that act is the death or grievous bodily harm of another human being. (Hancock and Shankland; Woollin) 4. The greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that that consequence was also intended 5. Intention can be defined as ranging between a wilful desire to bring about death and an inference from foresight of death as a virtually certain consequence 6. Recklessness is foresight of probable consequences and a willingness to run that probability

10 l. Reckless indifference to life i. Unlike intention, recklessness merely requires knowledge of probability rather than knowledge of a virtual certainty of death or grievous bodily harm. However, unlike negligence, recklessness is predicated upon subjective knowledge of risk as opposed to the objective knowledge of a reasonable person (Crabbe). ii. Must foresee the probability of death (Crabbe). iii. Foresight of GBH insufficient iv. Requires the accused's knowledge as to death being a probable consequence, in another word, knowledge of possibility is not enough: Crabbe (1985) 1. Probability means "a substantial, or real and not remote chance": Boughey (1986) 2. Mere possibility insufficient (Boughey; Annakin) v. Wilful Blindness 1. Evidence of wilful may support foresight which proves recklessness 2. Willful blindness is a term used to describe the accused shut[ting] their eyes to the circumstances in which they are acting. This is a failure to make enquiries. 3. Although a lack of actual knowledge of risk/certainty could be problematic to prosecutions for murder, willful blindness is not the same as intention or recklessness it is merely another fact from which inferences as to the accused s mental state may be drawn: a. Deliberate abstention from inquiry might, of course, be evidence of the actual knowledge or foresight of the accused. (Crabbe at RY348) b. In fact, because a person cannot... close their mind to a risk unless he first realises that there is a risk, evidence of wilful blindness may support an inference of foresight thereof (Caldwell). vi. Pemble case: 1. Facts a. Josie ( J ) has recently ended a relationship with Pemble ( P ) b. On the night in question, P sees J with her sister and father, and offers her a lift to the pub c. She declines, saying she is going home d. Later that evening, P arrives at the pub, where he notices J again e. P has a gun in his car, from which he saws off the en f. P takes the gun with him from his car to frighten her, and sneaks up behind J with the gun cocked and his finger on the trigger g. P claims that he stumbles, cries out, the gun goes off, and J is shot in the back of her head, dying as a result h. P claims that he did not know the gun was loaded and had no intention of harming J 2. Issue a. What mental state is applicable to P s conduct? 3. Reasoning a. The lawyer assumes P s story is correct and true; if it is, intent and recklessness can probably be ruled out i. What MR are available, and to what verdicts would they give rise? ii. The plausibility of the story is to be assessed by the jury, who will evaluate the competing interpretations of the facts of the prosecution and defence counsel b. The prosecution argues P intentionally shoots J, does not stumble, and does not cry out (based on eye-witness accounts) c. Factors supporting recklessness (intent to frighten) as the applicable mens rea: i. Sneaking up and yelling out name (implies wanting to scare) ii. Not knowing the gun was loaded (implies no intent to kill)