Homicide

Criminal Laws, S1 2014, Class 2

Class Structure

Background/Statistics:
Patterns of Homicide
An Atypical or Stereotypical Offence?
Murder and Manslaughter
Elements of Criminal Offences (Revision)
The Legal Framework
Elements of Murder
Manslaughter
Sentencing
Specific Cases:
Suicide
Protecting the Foetus
Mens Rea for Murder
Intent to Kill/Inflict GBH
Reckless Indifference

Patterns of Homicide
What does it mean to say that homicide is socially, historically
and culturally determined?
What patterns are evident in NSW homicides? (e.g. who
commits the most homicides, against whom, for what reasons,
with what weapons with what level of planning/premeditation)
What has happened to the homicide rate since 1990?
2009/10 = 1.2/100,000
What might these patterns suggest about the ways in which
the criminal law might usefully be amended, or policy usefully
redirected?

An Atypical or Stereotypical Offence?

In what ways do these patterns of homicide differ from those depicted in fiction and
the media?
How common is homicide compared to other causes of death?

Elements of Criminal Offences

Actus reus = the voluntary actions or omissions which constitute a crime;

the physical or external element(s) of an offence

Mens rea = the state of mind required to constitute a particular crime; the
mental element of an offence

In the case of murder, what does malice aforethought mean?

Concurrence (see eg Thabo Meli , Church, Le Brun pp 324-325)

The Legal Framework

Crimes Act 1900 (NSW)
18 Murder and manslaughter defined
(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.
(b) Every other punishable homicide shall be taken to be manslaughter
(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or
excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune
only.
NB: for manslaughter, need to go to common law (next class)

Crimes Act 1900 (NSW) s 4

"Grievous bodily harm includes:
(a) the destruction (other than in the course of a medical procedure) of the
foetus of a pregnant woman, whether or not the woman suffers any other
harm, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease (in which case a reference to the infliction of
grievous bodily harm includes a reference to causing a person to contract a
grievous bodily disease).

The direction normally given by the courts is that grievous bodily harm is simply bodily
injury of a really serious kind. This type of injury does not have to be permanent or even
life threatening.

Elements of Murder
Actus Reus:
1.) Act or omission causing death (intention + presumption that act is voluntary)
Mens Rea:
2.) Done with intent to kill? (if yes, prima facie murder; if no, check 3)
3.) Done with intent to inflict grievous bodily harm? (if yes, prima facie murder; if no, check 4)
4.) Done with reckless indifference to human life? (if yes, prima facie murder; if no, check 5)
5.) Done in an attempt to commit, or during or immediately after the commission of a crime punishable by
minimum 25 years? (if yes, prima facie murder but see next class)
Defences:
6.) Defence available? (if no, murder; if yes, could be acquitted altogether or reduced to voluntary manslaughter)

Manslaughter

No statutory definition

Left to common law

Voluntary manslaughter = the killing of a person which would

otherwise be murder, but where liability is reduced due to some
mitigating circumstance

Involuntary manslaughter = manslaughter by unlawful act or

criminal negligence

Sentencing
Crimes Act 1900 (NSW)
Section 19A (murder):

max life imprisonment

Section 24 (manslaughter):

max 25 yrs

But note Crimes (Sentencing Procedure) Act 1999 (NSW)

Section 21(1):

Where max penalty life imprisonment, court may impose sentence of a

specified term

Section 61:

Court is to impose life imprisonment if it is satisfied that the level of culpability

is so extreme that the community interest in retribution, punishment,
community protection and deterrence can only be met through the imposition
of that sentence

Suicide
Crimes Act 1900 (NSW)
Section 31A:

no longer a crime to attempt to commit suicide

Section 31B:
survivors of suicide pacts shall not be guilty of murder but
may be
guilty of aiding or abetting suicide under s 31C
(max 10 yrs)

Protecting the Foetus

Crimes Act 1900 (NSW)
Section 82:

self-procured miscarriage (10 yrs)

Section 83:

procuring miscarriage in another (10 yrs)

Section 84:

procuring drugs knowing that they will be used to procure miscarriage (5 yrs)

But note availability of necessity test on social/economic/medical grounds: see p 626

Definition of grievous bodily harm in s 4 includes destruction of foetus, whether or not the woman
suffers any harm
Does this sufficiently recognise the harm to the unborn child as a person?
Section 20 says life begins with first breath, not beforehand (though can be breathing with
assistance: Iby [2005] NSWCCA 178)
Note recent proposals in Zoes law: see http://www.youtube.com/watch?v=qNsV4USqsWc

Intent to Kill/Inflict GBH

Judicial Commission of NSW, Criminal Trial Courts Bench Book:
Intent and intention are very familiar words. In the legal context in which we are
considering them, they carry their ordinary everyday meaning. A persons intention
may be inferred or concluded from the circumstances in which the death occurred
and from the conduct of the accused person before, at the time of, or after he or she
did the specific act which caused the death of the deceased. In some cases, a
persons acts may provide the most convincing evidence of his or her intention at the
time. Where a specific result is the obvious and inevitable consequence of a
persons act, and where the person deliberately does that act, you may
readily conclude that he or she did that act with the intention of achieving that
particular result.

Reckless Indifference: Probability or

Possibility?

Crabbe (1985) 156 CLR 464

1.) What direction did the trial judge give to the jury with regard to the
requirements for reckless indifference?
2.) What view of reckless indifference did the majority favour in Crabbe?
3.) Why did the majority consider wilful blindness largely irrelevant?
4.) To what extent does Crabbe apply under the NSW legislation?
5.) How did later cases water down the view of reckless indifference put
forward in Crabbe, and which view should now be favoured?
6.) What level of reckless indifference do you think should constitute the
necessary mens rea for murder?

Next Class
Constructive Murder (Felony Murder)
Involuntary Manslaughter:
Manslaughter by unlawful act
Manslaughter by criminal negligence