4032LAW Exam Notes Offences 3 S300 Unlawful homicide 3 S302(1)(a) Intentional Murder 4 S303 Manslaughter 7 S335 Common Assault 9 S339 Assault occasioning bodily harm 10 S340 Serious assaults 11 S317 Acts INTENDED to cause grievous bodily harm and other malicious acts 12 S320 (causing w/o intention) grievous bodily harm 13 S323 Wounding 14 s210 Indecent dealing with a child under 16yo 15 s349 Rape 15 s350 Attempt to commit rape 19 s352 Sexual assault 19 s398 Stealing 20 s408c Fraud 23 s411 Robbery 25 419 & 421 Burglary 25 s433 Receiving tainted property 26 s469 Wilful damage 26 s578 Charges of offence of a sexual nature 27 s581 Offences of dishonesty 27 Sunday, 10 February 2013 1
Chapter 22 Offences against morality 27 Drugs Misuse Act 1986 (Qld) 27 S4 Attempts 33 Ss 7-10 Parties to an Offence 34 Defences 37 Burden of Proof 38 S23(1)(a) Lack of Will 38 S23(1)(b) Accident 39 S24 Mistake 40 S22 Mistake of law 43 S31(1)(d) Compulsion 44 S25 Emergency 45 S282 Medical Necessity 46 S27 Insanity 46 S28 Intoxication 48 S271(1) Self-defence against minor unprovoked assault 49 S271(2) Self-defence against major unprovoked assault 50 S272 Self-defence against provoked assault 51 S273 Aiding in self-defence 52 S268-9 Provocation 53 S304 Provocation 55 s304a Diminished responsibility 57 Sane and Insane Automatism 58 Other 59 Sunday, 10 February 2013 2
Offences S300 Unlawful homicide s300 Unlawful homicide: Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case. The punishment for murder is mandatory life sentence (s305). For manslaughter, it is up to life (s310). Death is not defined in the Code. It is defined at common law as brain stem death: Airedale NHS Trust v Bland [1993]. (note: it is s300 which establishes homicide is a crime) 1. Unlawfully Killing will be unlawful unless it is justified, authorised or excused (s291). E.g. self-defence is an excuse (s271(1)), extraneous circumstances (s23). But note that consent is not a defence (s284). Note attempted suicide is not an offence, but aiding a suicide is: s311. 2. Another person Usually straightforward but some difficulties at beginning and end of life. Baby is a person when outside of womb, even if not yet breathing and still connected by umbilical cord: s292. See also s313 (liability for people who cause a baby to die shortly after birth) and s294 (make it a crime to kill a child in the womb). Re A [2000]. Re end of life, there is a conflict between s282, s96 and Airedale NHS Trust v Bland [1993]. R v Kinash [1982] Qld is also important but I am not sure why. 3. Kills s293 defines killing as causes the death. Causation can be established in one of three ways: 1) code-deeming provisions (ss294-8); S298 where someone dies during treatment of GBH injuries, the person who caused the injuries will be deemed the person who killed them, provided the treatment provided that the treatment was reasonably proper under the circumstances, and was applied in good faith. S297 When a person causes a bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured, or that the injured personʼs death from that injury might have been prevented by proper care or treatment. S295 A person who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed the other person. S296 A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other Sunday, 10 February 2013 3
person. 2) criminal negligence (ss285-90); R v Hodgetts and Jackson (1990) adopts a similar approach to manslaughter, where the ʻcausationʼ need not be the only contributing factor, as long as it is a significant one. (SEE BELOW in MANSLAUGHTER for more on this.) 3) common law. At common law, the relevant test is the operating and substantial cause / substantial and significant test - a retrospective test where you look back from the result and see whether a particular causal factor has played a substantial role in bringing about the result. This is the preferred test in Queensland: R v Kinash [1982] Qld; R v Laycock & Stokes [1999] QCA 307 If there are two or more possible causes of death, any number of them can constitute murder, provided they were a significant contributing factor to the death: R v Laycock & Stokes [1999] QCA 307; Krakouer (WA) (2006). Dʼs conduct must contribute significantly to the death of the victim, but need not be the sole, direct, or immediate cause. Pagett (1983). Ways causation can be broken: 1. Where the victimʻs reaction is over the top 2. Where a 3rd party/event intervenes. This will be where it is such that it makes the original action merely part of the history : R v Hallett [1969] SASR 141. 3. Where victimʻs own actions break chain of causation Note: There is no criminal liability for omitting to prevent harm occurring, even murder: R v Coney (1882). There are a few exceptions: ss 285-6, 288-90. Basically these are based on special relations, e.g. taking care of a helpless person, taking care of children, surgical treatment, using dangerous equipment, etc. S302(1)(a) Intentional Murder There are three forms of murder under the Code: unlawful killing with intent to cause death; unlawful killing with intent to cause grievous bodily harm; unlawful killing by means of a dangerous act performed in the prosecution of an unlawful purpose. All three constitute the offence of murder: s302(1) and s305. The punishment for murder is mandatory life sentence (s305). Intentional murder is defined in s302(1)(a): if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm; Sunday, 10 February 2013 4
Provided they had this intent it is immaterial if the actual person killed is someone different: s302(2). The contemporaneity principle provides intent to kill or cause GBH must be present at the time of doing the act (c.f. time of the death): Thabo Meli v R [1954]. In other words, there must be a ʻtemporal connection of act and intentʼ. 1. Intention to cause death Accused must have acted with the purpose, object or desire of bringing about the death, as a result of his conduct (R v Crabbe) It doesnʼt matter that the way in which the death occurred was not intended (R v Willmot (No. 2) (1985)), confirmed in Reid (2997). Intention is ultimately a question of fact (OBJECTIVE) and is proved by logical inferences from a personʼs words and conduct together with the surrounding circumstances. It can sometimes be proved through a confession or some other admission by the accused, or by inferences from circumstantial evidence. The chain of reasoning is first to analyse objectively what would be in the mind of an ordinary person who did what the accused did and then ask whether there is any reason why the accused's state of mind might have been different. Note that the meaning of intention is not explained to juries: Willmot (No 2). OR 2. Intention to cause GBH Grievous bodily harm is defined in s1 as: (a) The loss of a distinct part or an organ of the body (b) Serious disfigurement (c) Any bodily injury of such a nature that if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health. Whether or not treatment is or could have been available. OR 3. Constructive murder / ʻfelony murderʼ Where mental elements for murder cannot be proved fault elements can be imputed Death cause by means of an act, in the prosecution of an unlawful purpose, which act is of a nature as to be likely to endanger human life, is guilty of murder s302(1)(b). It is immaterial that the accused did not intend to hurt anyone: s302(3). Has four main parts (Stuart v R): 1. The killing was unlawful (as per s291) 2. In prosecution of an unlawful purpose Purpose = to commit a criminal offence: Stuart v R. The act that causes the death must be one that facilitates the relevant unlawful activity: Stuart v R. Can include subsequent Sunday, 10 February 2013 5
events that comprise the unlawful purpose, provided the conduct is in furtherance of offence, eg getting away Georgiou, Edwards and Hefernan. If the offender intends to do GBH to a person for the purposes of facilitating a crime, and it results in death, that person is guilty of murder s302(1)(c) If the offender intends to cause GBH to a person for the purpose of facilitating the flight of an offender who has committed or attempted to commit a crime, and it resulted in death, is guilty of murder s302(1)(c) If the death is caused by administering any stupefying or overpowering thing for either of the purposes of committing a crime or flight from arrest, and it results in death, that person is guilty of murder s 302(1)(d) If death is caused by wilfully stopping the breath of any person for the purposes of committing a crime, or flight from arrest, and it results in death, that person is guilty of murder s302(1)(e) 3. Act likely to endanger life The death must be caused by an act of such nature as to be ʻlikelyʼ to endanger life, not merely conduct which ʻwould tend toʼ: Stuart v R. :ikely means ʻreal and not remoteʼ or ʻa substantialʼ, not merely greater than 50% on the balance of probabilities: Hind and Harwood v R (1995). BUT must be probable as distinct from possible must be probable in the sense that it could well happen. Darkan [2006] HC. The test is objective awareness/belief of the accused is immaterial: Stuart. 4. Dangerous act and unlawful purpose must be separate: Stuart v R (1974) The unlawful purpose must lie beyond the dangerous act, i.e. the act must be to some further unlawful end: R v Gould and Barnes [1960] (case where the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased.) Note: Must be a physical connection between unlawful purpose and murder (??). Note: If there is no intention, it will be manslaughter. Note: If intention is not proved at trial, manslaughter can be an alternative verdict (s576). Note: Normally palliative health care professionals would be guilty of murder for killing a patient who wanted their death hastened, but s282(a) provides there is no criminal responsibility for a death which is an incidental effect as long as (a) the care is performed in good faith and with reasonable care and skill, (b) its provision is reasonable in all the Sunday, 10 February 2013 6
circumstances, and (c) it is provided or ordered by a doctor. The reasonableness of palliative care is to be determined by ʻgood medical practiceʼ. S303 Manslaughter Manslaughter is basically just murder without intention ( involuntary manslaughter ) OR where the elements of murder are present but there is a partial defence so that special mitigating circumstances operate to reduce the offence to manslaughter ( voluntary manslaughter ): provocation (s304), and diminished responsibility (304A), and abusive domestic relationships (s304b). Manslaughter can be a charge in its own right (s303) OR as an alternative verdict to murder (s76). Any person who commits the crime of manslaughter is liable to imprisonment for life. (s310) There are two common ways for INVOLUNTARY manslaughter to come about: 1. Someone causes the death of another while unlawfully pursuing a course of intentional violence, involving an offence such as assault BUT lethal force is unintentionally used. This is unlawful killing in the absence of authorisation, justification or excuse: s291. THE TEST: Unless there is some other special defence, manslaughter by intentional violence is committed when the killing is either foreseen or foreseeable (because if the killing was foreseen or foreseeable, the exculpatory defence of accident will apply!): R v Taiters [1997]. There must be a temporal connection but can include subsequent events, e.g. killing happens during getaway during robbery. 2. Someone causes the death of another simply through negligence, without any intentional violence. The process for this is: 1. Is there a legal duty? (ss 285-90) 2. What does that duty involve? (i.e. Elements of the provision) 3. Has the duty been breached? 4. If yes, is the breach to the standard of criminal negligence? 5. Has negligence caused the death/injury? S285 Duty to provide necessaries It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention, or any other cause, to withdraw himself or herself from such charge, and who is unable to provide himself or herself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and the person is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that Sunday, 10 February 2013 7