CRIMINAL LAW

LARRISA LIU

MENS REA OF HOMICIDE

Criminal Law- Spring Semester

Podcast 8.1 notes

Class eight podcasts examine:
The mens rea for murder: There are four types of mens rea SECTION 18 (1) (A)
1.
2.
3.
4.

Intent to kill
Intent to cause gbh- section 4 of gbh
Reckless indifference to human life (Crabbe) (Royall)
Constructive murder (Ryan) (Munro)

The mens rea for manslaughter, there are two types of mens rea for
manslaughter: section 18 (1) (b)
1. Unlawful and dangerous act- Wilson
2. Manslaughter by criminal negligence- Nydam and Lavender
OVERVIEW OF UNLAWFUL HOMICIDE:
ACTUS REUS:
1.
2.
3.
4.

Act or omission omission- duty to act- Jjones, Stone v Dobinson, Taktak

Causing- Royall, Hallet, Blaue- the operating and substantiating cause
Death (SECTION 33 of the HUMAN TISSUE ACT)
Of a human being (born alive) s20 of the Crimes Act (murder) Ibymanslaughter

MENS REA:
Murder= section 18 (1) (A)
1.
2.
3.
4.

Intent to kill
Intent to cause gbh- section 4 of gbh
Reckless indifference to human life (Crabbe) (Royall)
Constructive murder (Ryan) (Munro)

Involuntary Manslaughter= Section 18 (b)

1. Unlawful and dangerous act- Wilson
2. Manslaughter by criminal negligence- Nydam and Lavender
Voluntary manslaughter- mens rea for murder proved but conviction reduced to
manslaughter because of a defence: (defences studied in class nine and ten)
1. Provocation: s23 of the Crimes Act
2. Substantial impairment- s23A of the Crimes Act
3. Excessive self-defence- section 421 of the Crimes Act
Section 18 of the Crimes Act is more of an emphasis on the actus reus
component of homicide, but reckless indifference to human life is a mens rea
element for murder, so is the intent to kill and intent to inflict gbh. Constructive
murder is also discussed here.
MURDER MENS REA
1. Intent to kill

2. Intent to inflict GBH outlined in section four of the Ccrimes Act: Common
law meaning of gbh: DPPv Smith, Haoui and King
3. Reckless indifference to human lfe- section 18 (1) (A)
(Crabbe) 1985- reckless indifference to human life at common law, the
trial judges directions can be found at p441-442
The key issue in this case is the degree of knowledge required:
knowledge that death or gbh is a probable consequence not a
possibility but a probable consequence
Resolving authorites- p442-423 :
- Preamble v The Queen
- Stephens Digest of Criminal law :
- La Fontaine v The Queen: Not murder unless the accused foresaw
that death or gbh was a probable consequence of the accuseds
actions. Probable rather than possible is the preferred method.
- The principle is on p 443
CRABBE (1985) HC Full Court- reckless indifference to human life at COMMON
LAW

RATIO (page443): It should now be regarded as settled law in Australia, if

no statutory provision affects the position, that a person who without
lawful justification or excuse does an act knowing that is probable that the
death of grievous bodily harm will result is guilty of murder if the death in
fact results. It is not enough that he does an act, knowing that it was
possible but not likely that the death or grievous bodily harm might result.
MEANING OF PROBABLE CONSEQUENCE:- p 443, If the accused knows
when he does an act that death or grievous bodily harm is a probable
consequence, he does the act expecting that death or grievous bodily
harm will be the likely result, for the word probable means likely to
happen. There is an expectation the grievous bodily harm or death is to
happen.
LAWFUL JUSTIFICATION OR EXCUSE: An example of this would be a
surgeon, relevance of lack of social purpose: A surgeon performs a
hazardous but necessary operation, even though they foresaw death
Distinguishing from foresight of consequences and the foresight of
circumstances: The test is whether they knew if their action caused death
or grievous bodily harm.
Wilful Blindness

MEANING OF PROBABLE:

Crabbe p443- probable consequence- expecting that death or grievous

bodily harm will be the likely result , probable means likely.
Boughey (1986), Tas p445- Criminal Code- intention to cause harm which
knew was likely to cause death.
Faure: Probable as distinct from possible but not likely, meant a
substantial, or real and not remote, chance, whether or not it is more than
50%
Annakin, Royall approved Annakin: Misdirection to equate the he might
well cause death and death might well result which means that it could
happen, with reckless indifference to human life

There is irrelevance to the method of causing death- Royall (1991) page

448 Does not matter the precise manner of death or that the accused
intended death to happen in a certain manner.