Homicide: Intent and Reckless Indifference [Week 1B]! Wednesday, 30 July 2014! 3:12 pm! Criminal Laws (Brown et al) [ ]!! Homicide: Murder and

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1 Homicide: Intent and Reckless Indifference [Week 1B] Wednesday, 30 July :12 pm Criminal Laws (Brown et al) [ ] Homicide: Murder and Involuntary Manslaughter Patterns of Homicide: A Wallace, Homicide: The Social Reality (1986): conclusions: homicide is socially, historically and culturally determined. comprises variety of offenders and victims in different social settings. largely interpersonal in nature, rather than instrumental in NSW. majority if interpersonal killings involve inmates. homicide patterns reflect cultural norms. homicide is spontaneous rather than premeditated crime. homicide offenders exhibit wide range of moral culpability. Homicide involving intimates: females more likely than males killed by someone they have been intimate with. Family homicide: 38% victims killed by family member. Femicide: overwhelming result of male violence. rarely a stranger. Child homicide: filicides: involving biological/de facto parent. outside of family context, offender almost always male. within family context, women more likely offender in comparison to other homicides. neotacides: killing of child within 24 hours birth... exclusively involve female offenders.

2 biological fathers who killed their children usually separated/ threatened with separation by mother. Killing friends and acquaintances: 80% involve male victim and offender. Male violence: Polk: four distinct masculine scenarios of violence: 27%: sexual relationships... usually male offender and female victim... asserting control over partner through violence... jealousy. 22%: defence of honour... in the face of verbal insult... both victim/offender male... lower class... spontaneous. 16%: other criminal behaviour. 10%: violence to resolve personal dispute that had developed over time. Weapons: over 75% males and 55% females stabbed/beaten to death. upward trend in knives and sharp instruments. majority of firearms unregistered.. An Atypical or Stereotypical Criminal Offence?: murder and manslaughter statistically rare in comparison with disease/accident. not only atypical as causes of death, but also as criminal offences. 2008: 3.8% of 3133 convicted. The Legal Framework: Lavender [2005]: held s18(2)(a) only related to offence of murder as defined in s18(1)(a), not to manslaughter as defined at common law and referred to in s18(1)(b). Proof of malice not element of manslaughter. requirement in s18(2)(a) for acts/omissions to be 'malicious' to fall within definition of murder adds nothing to those heads of murder which rely on intent to kill or cause grievous bodily harm, or reckless indifference to human life, because acts performed with these states of mind would necessarily be performed 'maliciously' (Coleman (1990)). manslaughter is left undefined, must turn to common law. two categories of involuntary manslaughter: manslaughter by an unlawful act.

3 manslaughter by criminal negligence. Causation: homicide demands a consequence - death. actus reus of murder and manslaughter is identical. the most a person can be criminally liable for if they fail to bring about death is attempt. attempted murder: there must be proof of an actual intent to kill (Knight) even though the mens rea for the completed offence is broader: it is sufficient MR for murder that accused intended grievous bodily harm, or was recklessly indifferent to human life. Murder and involuntary manslaughter: distinction in mens rea requirements. actus reus common for both offences.k murder (NSW): some degree of actual awareness by the accused of certain consequences which could result from their actions is required before they will be categorised as a murderer... exception for constructive murder. involuntary manslaughter: accused's appreciation of the situation is not particularly relevant. but liability is not absolute (i.e. not guilty simply because they cause death). everything turns on that which the jury would impute to a reasonable person if placed in accused's position. thus the criterion is objective. two versions of this objective standard are manslaughter by criminal negligence and manslaughter by unlawful and dangerous act. many convicted of manslaughter may have been aware of the risk of death, but the jury is not prepared to say their state of awareness was sufficiently great to bring them within the definition of murder. (this is only one element of the degree of culpability - awareness). Constructive crime: murder if act/omission causing death was 'done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by imprisonment for life or 25 years'.

4 makes murderers even of those who kill accidentally, provided they do so in course of particular types of criminal enterprise. Voluntary manslaughter: although jury satisfied that accused met mens rea requirements for murder- e.g. intent to kill - other circumstances mitigate culpability. e.g. provocation, substantial impairment, excessive selfdefence, infanticide. known as voluntary manslaughter. distinguished from involuntary manslaughter which occurs when accused did not have mens rea for murder, but falls within lowest common denominator of manslaughter by unlawful/dangerous act or manslaughter by criminal negligence. Wilson (1992) [history of homicide] Mason CJ, Toohey, Gaudron, McHugh JJ: Culpable homicide: common law of homicide began with all those who cause death, whether intentionally or accidentally, are liable to conviction for murder. emergence of manslaughter marks beginning of approach that causing death is innocent unless additional factors are present (e.g. intent to kill or excessive risk). Sentence: 1982: in certain limited circumstances the trial judge had discretion to sentence other than life imprisonment for murder. 1989: decision on whether to order life sentence on conviction for murder was left to discretion of trial judge. non-parole periods: 'standard non-parole period' for murder of 20 years, raised to 25 sometimes offender must be detained and cannot be released on parole.

5 means a non-parole period of 20 years must be set for convicted murderer unless court decides there are reasons for setting different period. objective for standard periods was ostensibly to make sentencing more consistent/transparent. concern of an underlying aim to increase sentences however... research indicates sentences have increased. no standard period specified for manslaughter. Interconnected issues: a case will rarely jut be about mens rea requirements... sometimes the whole range of requirements will be canvassed by prosecution. jury must decide what facts the prosecution has proved beyond a reasonable doubt. appeal court ascertains whether trial judge gave correct direction on law in relation to each possible version of the facts. trial judge must direct jury on any issue raised by the facts favourable to the defence even if the defence, perhaps for tactical reasons, does not seek to rely on that particular line of argument. The corollary of this is that, on murder, if there is no evidence that could possibly support a verdict of manslaughter, then the trial judge must refuse to leave manslaughter to the jury. Pemble. Intent and Reckless Indifference: Crabbe (1985): High Court: [train through wall] difference of opinion as to whether the knowledge which accused must possess in order to be guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm or whether knowledge of a possibility is enough. considered in La Fontaine v The Queen (1976).

6 considered it was enough that the accused foresaw the possible consequences of his acts but Barwick appeared to think it is an open question whether it sufficient if accused appreciated possibility rather than probability of serious harm... Gibbs/Jacobs held accused not guilty unless foresaw death or grievous bodily harm was probable consequence of behaviour. balance of opinion in favour of view that mental state necessary to constitute murder in case of this kind is knowledge by accused that acts will probably cause death or gbh. The view that knowledge of a possibility is not enough accepted. conduct of person who does an act, knowing death is probable consequence, can be regarded as just as blameworthy as conduct of one who does an act intended to kill or do gbh... a person who does an act knowing its probable consequences may be regarded as having intended those consequences occur. he does the act expecting that death/gbh will occur, for 'probable' means likely to happen. That state of mind is comparable to with an intention to kill or do gbh. person who does an act causing death knowing that it probable act will cause death or gbh is guilty of murder although such knowledge is accompanied by indifference whether death/gbh caused or not or even by wish that death not be caused. does not mean reckless indifference is an element of the mental state necessary to constitute the crime of murder... it is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is relevant. the act may be lawful. (e.g. surgery) the test is simply whether the accused person knew that his actions would probably cause death or gbh. Application of Crabbe in NSW: Royall (1991):

7 Court held decision in Crabbe on mens rea for murder should apply equally to interpretation of reckless indifference to human life in s18 Crimes Act qualificiation that prosecution had to prove accused foresaw the probability of death... foresight of gbh not sufficient MR for murder. defendant who is recklessly indifferent to serious bodily harm and not to death itself will be guilty of manslaughter... only in NSW. (Solomon). Probabilities and possibilities: Boughey (1986): [choking - sexual arousal] where Boughey acted with an intention to cause any person bodily harm which he knew to be likely to cause death... thus guilty of murder. Mason, Wilson, Deane JJ: 'a good chance it will happen'; 'something that may well happen'; something 'likely to happen'... more than a mere possibility. Gibbs CJ: 'likely' means 'probable' and not 'possible'. (the judgment encouraged the suspicion that they would tolerate the watering-down of concepts of probability and likelihood by trial courts.) Faure [1999]: [russian roulette] Court: 'probable' means 'a substantial, or real and not remote, chance, whether or not it is more than 50%'. Annakin (1988): ['Milperra Massacre' bikie gangs] Court: expression 'likely to happen' means that the event is going to happen, will happen, although only as a matter of probability, not certainty, whereas the expression 'may well result' or 'may well happen' seems to only reach the level of saying 'it could happen' but without suggestion that there is likelihood that it will happen.

8 (approved by Royall). White, Eaves and Parker (1988): ['Milperra Massacre'] associated expression 'might well cause death' with 'possibility' rather than 'probability'. La Fontaine (1976): [murdered brother] Gibbs J: if defendant intended to shoot near Kevin and scare him it would have been reasonable to draw the further conclusion that he knew it was probable that the bullet would strike Kevin and cause death/ gbh. Jacobs J: question whether if the applicant intended bullet should not hit body of deceased, and to scare him the jury could nevertheless find him guilty of murder. where they find possible -not probable - consequence of the act was that bullet would hit deceased and was recklessly indifferent whether or not it thus caused death/serious bodily injury. That does not constitute murder. not murder to do an act which is risky to the life of another simply because the risk is known to be probable. There must be indifference to known probable, not merely possible, consequences, and that indifference must be reckless. to say a man believes a consequence is possible though not probable is to say he believes consequence will not happen or he expects it will not happen even though he would be prepared to concede it may. reckless indifference to a consequence of death or serious bodily injury which is not expected to occur, but which it is appreciated might possibly occur, is properly treated as manslaughter. Irrelevance of method causing death:

9 Royall (1991): High Court: held that, provided mental state required for murder present, and test for causation satisfied, it did not matter that accused did not intend the precise way in which death actually occurred. Homicide: Constructive Murder, Manslaughter [Week 2A] Sunday, 3 August :48 pm Criminal Laws (Brown et al) [ ] Constructive Murder: Ryan [1967]: [armed robbery & wounding] Windeyer J: felony murder doctrine: said in R v Brown and Brian: 'the view prevailing seems consistently to have been that death unintentionally brought about in the commission or furtherance of a felony is only murder in the actor if the felony is one which is dangerous to life and likely in itself to cause death.' generally accepted rule today is that an unintended killing in the course or in connexion with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person. (now superseded in NSW by s18 Crimes Act 1900). Barwick CJ: if the act of accused causing death was done by him before, during or immediately after the commission of a felony punishable under the Crimes Act by penal servitude for life, that act is murder according to statute. the question whether the act was so done in relation to commission of such a felony calls for no more than the

10 application to the facts of one or more of those sections of the statute properly construed which provide a penalty of penal servitude for life. the trial judge intended to tell the jury that murder by reason of a combination of ss18 and ss98 could be made out without having had any intent to wound the deceased... he conveyed that the jury did not need to find any intent to wound. there can be no doubt that the wounding must be by the voluntary act of the accused; 'whosever wounds' is not satisfied by the mere fact that before, during or immediately after a robbery with arms the victim is in fact wounded. there may be a wounding followed by death, though the death be instant upon the entry of bullet into body... the fraction of time elapsing between the breaking of skin and death, though immeasurable, is significant. s18 requires act causing death to precede, accompany, or follow immediately upon commission of an offence under s98. That offence is only complete when victim of robbery is wounded. Thus, the offence under s98 could not, at the time that act was done, be complete. thus could not be made out as one of an act causing death done immediately after the commission of the offence under s98. the robbery with arms was complete before either the presentation or discharge of the gun so that the only part of the offence under s98 during which either of these acts could have been done was the wounding. But the gun was not presented during the wounding. it could be said the presentation/discharge of the gun was done before the commission of the offence of robbery with arms and wounding... or that either of these acts were done during the commission of the entire offence. I prefer the former as it supports a conviction of murder in this case, given the voluntary nature of the discharge of the gun.

11 e.g. prefers that presentation/discharge of gun done before the commission of the offence of robbery with arms/wounding. if Taylor's death was caused by a bullet fired by the accused, albeit accidentally, while he was robbing Taylor, the accused was guilty of murder. implicit in this is my opinion: (a) that there is a wounding or inflicting of grievous bodily harm involved in a fatal shooting whenever death follows entry of bullet into victim; (b) provided that the shooting was the act of the accused, it doesn't matter that it was unintentional or accidental - the person who commits robbery does so at the peril of committing murder if he happens through wounding to kill the person. Windeyer J: could the act of the applicant be said to have been 'done during or immediately after the commission of a crime punishable by death or penal servitude for life'? had to be proved the deceased was killed by prisoner during or immediately after the commission by the prisoner of an offence under s98. two objections were made to this: said man was not killed during wounding... but i see no reason to doubt why a man who is killed by a bullet is wounded and killed. the felony is constituted by a combination of two offences: armed robbery and wounding... both offences must be proved and an element of mens rea is required in each. does not mean that an intent to wound is an element of the offence, but it does mean that the act which caused the wounding must be the act of the accused voluntarily done. if a sane man voluntarily presses the trigger when it is pointed at another man close by, the conclusion that he intended to wound is inescapable.

12 Munro (1981): [assault & robbery with striking and wounding - elderly man thrown on floor died later] Street CJ: two principal defences: not intended to kill victim. no wounding as element in the robbery. Crown supported charge of murder on two bases: reckless indifference. felony murder. defence argued the chain of causation could not be traced from the attack through to the death or that the actual wounding ingredient in the felony had not been a causative factor in the death. also argued there must be a causal connection between the felonious wounding and the subsequent death. the act of accused causing death was the striking. It clearly was not the wounding although there was some wounding, the cause of death was the bruising and fractured ribs. there is no relevant requirement of a causal link between the felony relied upon as constituting the homicide one of felony murder and the death other than in s18(1)(a) itself, that is to say the act of accused causing death was done during or immediately after the committing of a life sentence crime. clearly if it were wounds inflicted in committing of crime which led to the death then that would amount to felony murder. But this is not an essential requirement. Mraz: 'if the crime had been committed and the acts of appellant associated with or done in furtherance of this purpose had caused the death, it was unnecessary that they should embark upon an independent inquiry to ascertain whether those acts were malicious.

13 The very fact that they were associated established they were done of malice.' thus the 'no wounding as element in the robbery' is irrelevant for felony murder. there must be found to be some element of malice and hence some guilty mind linking the s96 offence (assault/ robbery/striking/wounding) over on to the death. s18 is clear in its terms in defining the felony murder as one in which the death results from an act done in circumstances where that act was done 'during or immediately after the commission, by the accused... of a crime punishable by death or penal servitude for life'. thus it is irrelevant that trial judge erred in failing to direct the jury that it was necessary for Crown to establish that a reasonable person in the position of the accused would have foreseen that his acts would cause death and that wounding would cause death. defence contended that the judge erred in that he should have directed jury that Crown must prove that the act of accused directly caused the death. the supervening pneumonia was the immediate cause of death... no basis for thus confining the scope of the causative link between the act and the death... the contention is not made good. test is whether Constructive murder and mens rea: under this doctrine, a conviction can be secured even if the consequence was accidental. prosecution doesn't have to prove that defendant realised that death or any other consequence was possible result, or that reasonable person would have appreciated such risk. (Munro; Bowden). The base offence: number of offences punishable with 25 years' imprisonment that could form basis of a constructive malice argument. many cases such an argument is redundant because the offences require proof of an intent that forms head