Murder and Involuntary Manslaughter

Transcription

1 Murder and Invluntary Manslaughter A Wallace, Hmicide: The Scial Reality Sme general patterns re: hmicide: - Hmicide is a crime that is scially, histrically and culturally determined, rather than the randm actin f deranged r pathlgical individuals - Cmprises a Variety f ffenders and victims in different scial settings - In NSW is largely interpersnal in nature, rather than instrumental r idelgical - Majrity f interpersnal killings invlve intimates v- spusal hmicides particularly prminent - Hmicide patterns reflect cultural nrms eg. Killings invlving adult males in a scialising cntext cannt be divrced frm men s scially and culturally defined rles aggressr and prvider - Hmicide is a spntaneus rather than pre-meditated crime - Hmicide ffenders exhibit a wide range f mral culpability Murder and Manslaughter Crimes Act 1900 (NSW) 18 Murder and manslaughter defined (1) (a) Murder shall be taken t have been cmmitted where the act f the accused, r thing by him r her mitted t be dne, causing the death charged, was dne r mitted with reckless indifference t human life, r with intent t kill r inflict grievus bdily harm upn sme persn, r dne in an attempt t cmmit, r during r immediately after the cmmissin, by the accused, r sme accmplice with him r her, f a crime punishable by imprisnment fr life r fr 25 years. (b) Every ther punishable hmicide shall be taken t be manslaughter. (2) (a) N act r missin which was nt malicius, r fr which the accused had lawful cause r excuse, shall be within this sectin. (b) N punishment r frfeiture shall be incurred by any persn wh kills anther by misfrtune nly. - All frms f hmicide have the same actus reus (an act r missin causing death f a persn); it is the actus reus which is different the mre culpable states f mind are reserved fr murder (the ne exceptin being cnstructive murder, which des nt require mens rea, but requires that smene dies during the cmmissin f a crime punishable fr life fr 25 years). s 18 f the Act defines murder, but des nt specifically define manslaughter, leaving manslaughter t be defined by cmmn law. Manslaughter can be split int vluntary manslaughter (where the persn satisfies the actus reus and mens rea fr murder but certain defences (prvcatin, excessive self-defence, diminished respnsibility, infanticide) allw it t be kncked dwn (this will be discussed later in defences)) and invluntary manslaughter (unlawful and dangerus act manslaughter; criminal negligence manslaughter and pssibly reckless manslaughter). Actus reus (same fr all) - Act r missin - Causing

2 - Death - Of a persn capable f being killed Act r missin - Generally unremarkable. Will generally nly g int this element in any depth if there is an issue f missin (in which case a duty t act and a breach f that duty must be established see previus Actus Reus sectin) r vlitin. Vlitin: an act must be willed/vluntary (ntin f vlitin is cvered in mre detail previusly). There is presumptin f capacity and vlitin i.e. that accused s act was cnscius and willed (Bratty v Attrney-General fr Nrthern Ireland [1963] AC 386; Falcner Death (1990) 171 CLR 30) - When is a persn dead? This presumptin can be displaced by evidence. Defence bears evidentiary burden f raising the issue f capacity and vlitin. See als Ryan (1967) 121 CLR 205 Human Tissue Act 1983 (NSW) Part 7 Definitin f death 33 When death ccurs Fr the purpses f the law f New Suth Wales, a persn has died when there has ccurred: (a) irreversible cessatin f all functin f the persn s brain, r (b) irreversible cessatin f circulatin f bld in the persn s bdy. Persn capable f being killed - Death must be f an alive persn - When can a baby be a persn capable f being killed? Crimes Act 1900 (NSW) 20 Child murder when child deemed brn alive On the trial f a persn fr the murder f a child, such child shall be held t have been brn alive if it has breathed, and has been whlly brn int the wrld whether it has had an independent circulatin r nt. - Hmicide, therefre, des nt cver the death f an embry r fetus in the wmb. - Iby [2005] NSWCCA 178 has indicated that there nly needs t be a sign f life after the birth f a baby, such as a heartbeat, fr the baby t be cnsidered t be brn alive (and hence a persn capable f being killed) even if it is destined t die because it is brn prematurely. This case als held that the baby des nt need the capacity t breath unaided. - Martin (1995) 85 a Crim R 587: Pregnant wman stabbed, lst lts f blds. Baby was brn alive but dies a cuple f mnths later as a result f the bld lss while the baby was in the wmb. Defence argued that when D acted, the baby was nt a persn capable f being killed. Hwever, murder = a results crime, s the baby nly needs t be a persn capable f being killed at the time f the result. Therefre, if baby is brn alive but later dies frm injuries sustained in wmb, this may be unlawful hmicide. - While death rf an embry r fetus is nt hmicide, the definitin f GBH

3 Causatin (s4 f Crimes Act 1900) has been extended t include the destructin f the fetus f a pregnant wman, whether r nt the wman suffers harm. - With a results crime like hmicide, the (vluntary) act r missin f the accused must be shwn t have caused the death f the deceased. - There are always tw steps that need t be established: Factual cause / causal cnnectin Legal cause / causal respnsibility - While the principles relating t legal causatin are cmplex and varied, the factual causatin rule is the ne basic grund rule the but fr test. Cannt say a factr is a cause f a cnsequence unless that cnsequence wuld nt have happened but fr the presence f that factr (see, fr e.g. Arulthilakan (2004) 203 ALR 259). Hwever, this is nly the first step and is nt enugh n its wn. One cnsequence may have scres f but-fr causes. A curt must then determine legal causatin curt makes judgment abut which but-fr cause is als a legal cause. - Several different tests fr determining legal causatin, but there is very little in the way f a clear and precise test. First test in mre simple cases the cmmn sense test, where a situatin is less cmplex, juries shuld use their cmmn sense. (Katarzynski [2005] NSWCCA 72) Operating and substantial cause test ne f the mst fsvured tests, which suggests that if the accused s act r missin is the main cause perating until the time f death, and nthing has stpped it cntinuing in between, then it is a legal cause. Smith [1959] 2 QB 35: Lrd Parker CJ: [I]f at the time f death the riginal wund is still an perating cause and a substantial cause, then the death can prperly be said t be the result f the wund, albeit that sme ther cause f death is als perating. Only if it can be said that the riginal wunding is merely the setting in which anther cause perates can it be said that the death des nt result frm the wund. Putting it anther way, nly if the secnd cause is s verwhelming as t make the riginal wund merely part f the histry can it be said that the death des nt flw frm the wund. The reasnable freseeability test: examining whether the cnsequences f the accused s cnduct were reasnably freseeable cnsidering what reasnable persn wuld have freseen. Hwever, in Ryall v The Queen (1991) 172 CLR 378, while the HCA cnsidered legal causatin and freseeability as clsely cnnected, als held that this test might create cnfusin in juries between subjective and bjective standards f freseeability. While this test is seen t be ut f favur by majrity f HCA, it keeps finding its way int causatin analysis. Natural and prbable cnsequence test - Generally the questin f causatin will be relatively straightfrward, hwever

4 the abve tests will need t be used if there is a questin f a nvus actus interveniens. A chain f causatin may be brken by a new intervening cause. This might be: Act f V (escape, suicide, rejectin f treatment); Act f third party (medical treatment, respnse t a dangerus situatin created by accused); Act f Gd. If there is ptentially a nvus actus interveniens, must first establish if the riginal act f the accused is a factual cause, then ask if it culd be a legal casue, then ask whether the chain f causatin has been brken. There are several different types f nvus actus interveniens f particular interest in hmicide: a) Intervening act f the victim? What if the victim is killed trying t escape frm the accused? Generally the view is that if the victim had a well-funded and reasnable apprehensin f unlawful and physical harm, it des nt break the chain f causatin. The victim s reactin (e.g. jumping ut f a windw) may nt be ratinal, as lng as the apprehensin is wellfunded, as such a situatin wuld nt necessarily prduce the mst ratinal respnses in a persn hwever there shuld be at least sme sense f prprtinality, the victim s respnse cannt be s ut f prprtin and s unreasnable as t break chain f causatin. This is a questin f fact and degree and the questin will be whether the respnse was reasnable/prprtinate keeping in mind the apprehensin f physical harm. Ryall (1991) 172 CLR Victim jumped ut f windw in a situatin that lks like she was being threatened by the accused (it lks like he frced way int bathrm and was vilent). She died frm the fall. - Masn CJ: Generally causatin is an issue f cmmn sense fr a jury. But this is a mre cmplex situatin. Masn favurs natural cnsequences test. Generally speaking, an act dne by a persn in the interests f selfpreservatin, in the face f vilence r threats f vilence n the part f anther, which results in the death f the first persn, des nt negative causal cnnexin between the vilence r threats f vilence and the death [I]n the cntext f causatin, the principle is best frmulated as fllws: where the cnduct f the accused induces in the victim a well-funded apprehensin f physical harm such as t make it a natural cnsequence (r reasnable) that the victim wuld seek t escape and the victim is injured in the curse f escaping, the injury is caused by the accused s cnduct. Whether it is necessary fr the prsecutin t establish als that the mde f escape adpted is a natural cnsequence f the victim s apprehensin culd nly arise in circumstances where the victim des smething irratinal r unexpected, in which event it might be mre difficult t establish that the injury sustained was a cnsequence f the accused s act and nt the prduct f the victim s vluntary act. In such a situatin much may turn n the nature and extent f the well-funded apprehensin f the victim; and it is t be expected that persns fearful fr their wn safety frced t react n the spur f the mment will nt always make a sund r sensible judgment and may act irratinally. Masn pints ut that natural cnsequence test is ften linked with

5 freseeability, but says if jury cnsiders freseeability i9t will be mre likely t cnfuse them. - Brennan J: Favurs the reasnable freseeability test. [W]here the victim s attempt at self-preservatin is nt reasnable (r prprtinate), the chain f causatin is brken and the victim s death is nt treated as having been caused by the accused s cnduct [T]he questin whether the chain f causatin is brken by the victim s taking f the final step is a questin f fact t be answered by reference t the bjective circumstances. Nevertheless, an accused cannt be held criminally respnsible fr a death that has been caused in fact by his cnduct if the final fatal step taken by the victim was neither freseen nr reasnably freseeable. Brennan blurs lines between causatin (actus reus) and ntins f freseeability and intentin (mens rea) suggesting that if accused intended smething r fresaw it, and it happens, they caused it. - Deane and Dawsn JJ: [T]here may be n single cause f the death f the deceased, but if the accused s cnduct is a substantial r significant cause f death that will be sufficient, given the requisite intent, t sustain a cnvictin fr murder [I]n a fright r self-preservatin case, where the questin is whether the victim s reactin was an ver-reactin and therefre a cincidence [a] directin that the victim s fear r apprehensin must be well-funded r well-grunded r reasnable in all the circumstances will adequately raise the issue, as will a directin that the act f escape r selfpreservatin must be the natural cnsequence f the accused s behaviur. - They and Gaudrn JJ: Reas freseeability will just cnfuse a jury, they shuld be tld t apply cmmn sense t the facts t see if accused caused death, and can be tld that if deceased s reactin t accused s cnduct was disprprtinate t the act, it will break chain f causatin. - McHugh J: If the cnduct f the accused in fact induces the victim t d smething which causes harm t him r her, the act f the victim ught nt t be regarded as a nvus actus interveniens merely because it was unreasnable. Persns subjected t vilence r the threat f vilence d nt always think ratinally r act reasnably Indeed, in sme cases, the suicide f the victim shuld nt be regarded as breaking the causal chain f respnsibility Any irratinal r unreasnable cnduct f the victim will be a variable factr t be weighed accrding t the circumstances f the case. McHugh als favured the reasnable freseeability test. Rik [2004] NSWCCA Deceased threatened by accused n railway platfrm; deceased jumps nt tracks (stensibly t avid the threat) and makes way t anther platfrm, but hit by an appraching train and dies. Accused cnvicted n manslaughter. - Accused appealed. One questin was whether the actins f the deceased brke the chain f causatin, and much turned n the idea f whether the deceased s respnse t the threat was reasnable r prprtinate t the threat, r whether it had t be. - Hdgsn JA: [W]hether the respnse f the deceased was reasnable r prprtinate in the circumstances, were quintessentially questins apprpriate fr determinatin by a jury On the questin f whether what the deceased did was reasnable r prprtinate, a jury culd prperly have cnsidered that the deceased was placed in fear fr his safety, and that he culd

6 reasnably have believed that quick and decisive actin was required t prtect himself. The reasnableness and prprtinality f his respnse wuld then be assessed in terms f the respnse f a persn, in fear fr his safety, making a quick decisin as t what t d In my pinin, having regard t all these cnsideratins, it was pen t the jury t be satisfied, beynd reasnable dubt, that the respnse f the deceased was reasnable and prprtinate. Appeal dismissed. McAuliffe (1995) 183 CLR Nt a situatin where deceased had been trying t escape, but where the questin arse whether the actins f the deceased brke chain f causatin. - Ds attacked and bashed a persn near the edge f a cliff leaving him seriusly wunded and dazed, with the result that he fell ver the cliff t his death. - Crim Curt f Appeal lked at ntin f reasnable freseeability, drawing n differing views in Ryall, asking whether it was apprpriate t ask whether this was a reasnably freseeable cnsequence f D s acts (and hence caused by their acts), but said that n the facts there was n questin f an verreactin n the part f the deceased such as might, n sme views, call fr the intrductin f ntins f freseeability. - HCA dismissed the appeal. b) Will medical treatment break the chain f causatin? Generally medical treatment will nt break the chain f causatin even if it has been prly administered, unless it has nt been reasnably prper r in gd faith. Treatment must fall s far belw the expected standard must be palpably wrng. Smith [1959] 2 QB 35: Accused inflicted tw baynet wunds n victim, ne pierced the lung medical staff drpped victim and did nt give gd treatment, but Eng C f A upheld cnvictin against accused. Used the perating and substantial cause test (utlined abve). Jrdan (1956) 40 Cr App 152: Eng C f A held that medical treatment was palpably wrng, such that chain f causatin between the stabbing f the victim by the accused and the victim s later death was brken. Malcherek and Steel [1981] 2 All ER 422: Tw fact situatins bth where dctrs discnnected life supprt machines n which victims f attacks by Malcherek (in ne case) and Steel (in anther) had been placed. One instance dctr cncluded deceased brain had ceased functining, while in anther that deceased s brain was irretrievably damaged. Curt stated: if treatment is given bna fide by medical practitiners, and victim dies in spite r because f it, will generally nt exnerate assailant frm respnsibility fr the death. If dctr discntinues treatment f persn wh alive by nly mechanical means, this des nt break the chain f causatin between initial injury and death. Cheshire [1991] 3 All ER 670: Eng C f A: Even thugh negligence in the treatment f the victim was the immediate cause f his death, the jury shuld nt regard it as excluding the respnsibility f the accused unless the negligent treatment was s independent f his acts, and itself

7 s ptent in causing death, that they regard the cntributin made by his acts as insignificant. R v. Evans & Gardiner (N 2) [1976] VR V stabbed in stmach by tw prisners, bwel resectin dne in hspital but died 11 mnths later frm cmplicatins frm the peratin, evidence shwed that cnditin shuld have been diagnsed. Nnethless, A's were cnvicted f murder. Curt used perating and substantial cause test, fllwed Smith. Held that riginal stabbing was a substantial cause f death. Failure f med practitiners t diagnse crrectly V s cnditin, hwever inept and unskilful, was nt the cause f death and real questin fr jury was whether blckage was due t stabbing. c) Will refusing treatment break the chain f causatin? Refusing medical treatment will nt break chain f causatin, as killer must take victim as finds them. Blaue [1975] 3 All ER 446: Accused attacked deceased with a knife. In hspital she refused bld transfusin because she Jehvah s witness. Crwn admitted that she wuld have lived if had had bld transfusin. Accused argued that the deceased s refusal t have treatment brke the chain f causatin. Lawtn LJ: It has lng been the plicy f the law that thse wh use vilence n ther peple must take their victims as they find them. This in ur judgment means the whle man, nt just the physical man The questin fr decisin is what caused her death. The answer is the stab wund. The fact that the victim refused t stp this end cming abut did nt break the causal cnnectin between the act and death. Bingapre (1978) 11 SASR 469: Victim f attack by accused leaves hspital against the advice f dctrs, returns six hurs later but later dies f a cnditin that culd have been treated if stayed earlier in hspital. Despite this, chain f causatin nt brken, accused still causally respnsible fr the death. d) What if the victim has a particular characteristic, abnrmality, weakness, persnal trait which makes them mre susceptible t death, will this break chain f causatin? N. The accused must take the victim as he/she fund them. If D cmmits vilence against V, and V has egg-shell skull r haemphilia and dies, D cannt cmplain. This has been given a brad interpretatin, whereby the D must take V as a whle persn (including religius beliefs). See Blaue [1975] 3 All ER 446 abve. e) If the actins f a third party cause the death f V, but it is because f a dangerus situatin created by the accused where it was reasnably freseeable that that situatin wuld lead t the death f the victim, the actins f the third party d nt break the chain f causatin. Ntin that if the acts f the third party are nt free and vluntary, then they d nt break the chain f causatin.