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Homicide Notes

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4. Homicide Introduction Criminology of murder Two types of unlawful homicide: s18 Crimes Act 1900 (NSW)

* Murder

* Manslaughter

* Voluntary manslaughter

* Involuntary manslaughter

* Manslaughter by Unlawful & Dangerous Act (UDA MNS)

* Manslaughter by Criminal Negligence

* Reckless?
Actus reus is the same for all types of homicide: an act or omission causing death. Issues re AR:

* Volition.

* Who is alive and dead?

* Causation & coincidence It is the MR that differentiates murder from manslaughter.

* Mens rea of murder
- Malice? - now removed from Crimes Act
- Intention
- Reckless indifference to life

* Constructive (felony) Murder Murder Definition Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same": Sire Edward Coke c1600 CRIMES ACT 1900 PART 3 - OFFENCES AGAINST THE PERSON Division 1 - Homicide 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.

1 4. Homicide


Constructive Murder

Actus Reus

Act or omission causing death

* Act or omission causing death

* In the course of furtherance of an offence punishable by 25 years or life: Munro, Mraz

Mens Rea

* Intention to kill; or

* Intention to cause GBH; or

* Reckless indifference to life, i.e., foresight of the probable risk of death: Crabbe, Royall

The same mens rea of the alleged offence which is punishable by 25 years or life.

Actus Reus Volition

* The accused's act must be voluntary.

* There is a presumption of capacity and volition, i.e., that an accused's act 'conscious and willed' and voluntary: Bratty v Attorney-General for Northern Ireland [1963], Falconer (1990)
The presumption can only be displaced by evidence.
The accused bears the evidentiary burden of raising the issue of capacity and volition: Falconer (1990), Ryan(1967).

1. The appellant strangled and killed a young woman whilst giving her a lift.

2. He then dumped her body on the side of the road and drove home.

3. The appellant was a friend of the family of the deceased and had often visited their home and given her lifts.

4. The appellant suffered from psychomotor epilepsy and stated that at the time of the killing a terrible feeling came over him and he was not conscious of his actions.

5. He wished to raise the defence of automatism but the trial judge refused to allow this to be put before the jury and directed the jury with regards to insanity.

6. The jury rejected the insanity defence and convicted him of murder.

7. The appellant appealed contending the judge was wrong not to allow the defence of automatism. Held, Appeal dismissed.The trial judge was correct in directing the jury as to insanity.

Bratty v Attorney-General for Northern Ireland [1963] AC 386 Meaning of Automatism "Automatism" -- means an act which is done by the muscles without any control by the mind.

* An act is not to be regarded as an involuntary act simply because the doer does not remember it.
Loss of memory afterwords is never a defence in itself, so long as he was conscious at the time.

* Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it.

* Nor is an act to be regarded as an involuntary act simply because it is unintentional or its consequences are unforeseen.
"Automatism" can only be used as a defence if he can show that it was an involuntary act in the sense that he was unconscious at the time and did not know what he was doing. Meaning of Insanity If the involuntary act proceeds from a disease of the mind, it give rise to a defence of insanity, but not a defence of automatism.

* Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean that he would be let at large to do it again.
The only proper verdict is one which ensures that the person who suffers fro the disease is kept secure in a hospital so as not to be a danger to himself or others.
That is, a verdict of guilty but insane. Onus of Proof

* If the accused says he did not know what he was doing, then, so far as the defence of automatism is concerned, the Crown must prove that the act was a voluntary act.

* But so far as the defence of insanity is concerned, the defence must prove that the act was an involuntary act due to disease of the mind.

* Whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes.
Therefore, if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred.
The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. 2

4. Homicide

Once a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury.

* When the only cause that is assigned for an involuntary act is drunkenness, then it is only necessary to leave drunkenness to the jury, with the consequential directions, and not to have automatism at all.

* When the only cause that is assigned for it is a disease of the mind, then it is only necessary to leave insanity to the jury, and not automatism.

* When the cause assigned is concussion or sleep-walking, there should be some evidence from which it can reasonably be inferred before it should be left to the jury.
At the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act.

1. There was a history of violence by Gordon Falconer against his wife, Mary Falconer.

2. She had obtained a non-molestation order against him and criminal proceedings had been started against him in relation to charges he had sexually abused two of their daughters.

3. Mary Falconer shot Gordon Falconer dead after he came over to her unexpectedly that day and assaulted her.

4. Mary claimed that she remembered nothing after he grabbed her hair until she was slumped against an archway with the shotgun nearby.

5. The defence sought to call evidence from two psychiatrists to show Mary's conduct was consistent with automatism.

6. The evidence was ruled inadmissible.

7. On appeal, the evidence was deemed admissible and a retrial was ordered.

8. Now on appeal by the Crown. Issue: whether the trial judge wrongfully excluded psychiatric reports of the accused?

* Section 23 of the Criminal Code (W.A.) ("the Code") provided that "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will".

* Section 26 provided that "Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved".

* Section 27 provided that "A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission".

R v Falconer (1990) 171 CLR 30 Held, per totam curiam (i) Special leave to appeal would be granted and the appeal dismissed. (ii)The Commissioner erred in rejecting the evidence proposed to be given. (iii)Per Deane and Dawson JJ (agreeing generally with the reasoning of Toohey J and Gaudron J): In a case where an issue of sane automatism was raised by positive evidence (including expert medical opinion), an accused would be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt. (iv)Per Toohey J: A person was not criminally responsible for an act or omission which occurred independently of the will. Dissociation might warrant a conclusion that the act or omission in respect of which an accused was charged occurred independently of the will. The jury should first ask itself whether the Crown has disproved, beyond reasonable doubt, noninsane automatism. If the Crown has failed to do so, then the accused will be entitled to an unqualified acquittal. The evidence of the psychiatrists was relevant to a defence that the act of killing was independent of the exercise of Mrs Falconer's will. It went further than to raise a mere possibility that, at the time of the shooting, Mrs Falconer was acting in a dissociative state.

* Per Gaudron J: The jury should have been directed to consider whether, in the light of that evidence, the prosecution had proved beyond reasonable doubt that Mrs Falconer's will accompanied the act of discharging the gun. It should have been explained to the jury that the prosecution would not have proved the issue beyond reasonable doubt if it was a reasonable hypothesis that Mrs Falconer discharged the gun while experiencing that particular mental state described in the evidence as one that may be experienced by a normal and healthy mind and in which the personality is segmented so that acts are performed independently of the will. (v)Per Mason CJ, Brennan and McHugh JJ (dissenting): The evidence of the psychiatrists was admissible for the purpose of proving that at the time of the killing Mrs Falconer was in a state of non- insane automatism. When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was 1) transient 2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and 3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity.
As an accused bears no ultimate onus of proving that his act was not willed, in theory an accused may raise the issue of noninsane automatism on the evidence and claim to be acquitted outright unless the prosecution disproves the issue.

* If an accused proves on the balance of probabilities that he was acting as an automaton when the act was done by reason of mental malfunction but fails to prove that his mental malfunction satisfied the exempting qualifications, he is entitled to be acquitted on account of unsoundness of mind or on the ground of insanity.

* However, if he proves that his mental malfunction satisfied the exempting qualifications, he is entitled to an outright acquittal.

* In the absence of some contrary evidence, it is presumed that an act done by a person who is apparently conscious is willed or done voluntarily.That presumption accords with, and gives expression to, common experience. ...

* The presumption is an inference of fact and there must be good grounds for refusing to draw the inference.... 3

4. Homicide

* Although prosecution bears ultimate onus of proving beyond reasonable doubt that an act which is element of offence charged was willed act or done voluntarily, prosecution may rely on [presumption] unless there are grounds for believing D was unable to control that act., -->ie evidential burden on D to rebut presumption

* If an accused's act or omission occurred independently of his other will by reason of involuntary conduct not arising from a disease of the mind or natural mental infirmity, he or she is entitled to an unqualified acquittal. If the evidence requires a jury to consider both non-insane automatism and insanity, the jury should first ask itself whether the Crown has disproved noninsane automatism beyond reasonable doubt. If the Crown has failed to do so, the accused is entitled to unqualified acquittal. If the Crown has disproved non-insane automatism beyond reasonable doubt, the jury should then ask whether the accused has proved, a disease of the mind or natural mental infirmity within the meaning of s. 27 on the balance of probabilities. If he or she has, the jury should acquit on the ground that the accused was of unsound mind. If not, the jury should convict if the other elements of the offence have been proved beyond reasonable doubt.

* Where the involuntary action occurred because of automatism resulting from mental disease, natural mental infirmity or disorder of the mind, this was encompassed in the insanity defence.

* However, if the automatism arose from a mental condition that could not be classified as a result of a mental disease, natural mental infirmity or disorder of the mind, and this automatism caused an involuntary act, the accused would get a total acquittal.

1. Application for special leave to appeal against conviction for murder.

2. Accused robbed service station using rifle.

3. Accused attempted to tie attendant up while pointing loaded gun at attendant.

4. Following a movement by the attendant, the accused's finger pressed the trigger, according to accused without any intention to do so.

5. Attendant died instantly.

6. Accused submitted that killing criminal but accidental and manslaughter not murder. Held: dismissed the application for special leave. (5:0), murder was established.

* not like act done under duress, where although willed is involuntary because compelled

* not like act done in fit or seizure, which is involuntary because actor unable to will otherwise

* not like act done by sleep-walker or unconscious, which is involuntary because actor didn't know what doing

Ryan (1967) 121 CLR 205 Relevant act

* A criminal act is accidental where it was caused without intention, recklessness or criminal negligence. Where the criminal act was caused by a reflex action --- this is an act founded on an external cause rather than intention.

* The act must be willed, a voluntary act causing death - though its consequences may not be intended. ... Barwick CJ: (Para 25) The safety catch was not applied: the applicant had his finger on the trigger: he was engaged in withdrawing the cord from his pocket, itself an activity limiting D's freedom of movement and reducing his concentration in the handling of the weapon: and, although V had been pliant whilst faced with the gun, he could not be counted on to remain so, particularly when he knew from D's own words that D was about to do something which in the ordinary course would involve the use of both hands and so remove or greatly reduce the threat of the gun. --> (A reflex action is entirely involuntary.) Taylor & Owen: Death caused by combination of acts done per design to commit robbery ... incl loading & cocking rifle, failure to apply safety catch, presentation of rifle at V with finger on trigger in circs in which attempt at resistance might well have been expected. No suggestion that these acts were involuntary. They were done deliberately and were as much part of act causing death as was pressure of trigger which fired rifle. It is impossible to isolate act of pressing trigger from other circs and argue it alone caused death.
The death was caused by a combination of acts.

* It is impossible to isolate the pressing the trigger, the loading of the gun, ect,

* Completely avoid the question whether the reflex action is voluntary or involuntary. Windeyer J: What is a voluntary act?... The conduct which caused the death was of course a complex of acts all done by the applicant -- loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. ...But assume that the applicant's act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which although done by an exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the act refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing.

4 4. Homicide

1. During an argument the accused stabbed his pregnant de facto partner H, causing severe wounds.

2. H lost blood estimated to be at least one litre representing about 20 per cent in her blood volume.

3. The blood loss caused her to go into hypovolaemic shock which, in the case of a pregnant woman, causes the mother's body to compensate by diffusing blood from the placenta.

4. The interruption of blood supply to the foetus causes massive necrosis of brain tissue.

5. At birth, the baby had massive and irreversible brain damage and died seven months later.

6. The accused was acquitted of murder, but convicted of manslaughter.

7. His counsel submitted that unlawful killing cannot occur unless there is, at the time when the act occurred, a legally recognised person whose death is brought about by the act of the accused. Held, Question answered. It is open to the jury to decide.

1. Whether intentional infliction of injury to unborn child or mother carrying unborn child constitutes offence of murder or manslaughter.

2. Whether liability for murder or manslaughter negatived where injury inflicted on mother rather than child itself.

3. Whether foetus has no separate existence so that not unlawful to cause injury to it.

4. Whether no requirement that person who dies need be a person in being at the time that the act causing death is perpetrated.

5. Whether intention to kill or cause serious bodily harm to mother is sufficient to satisfy mens rea of murder by reason of doctrine of transferred malice.

6. Whether intention to cause injury exclusively to foetus sufficient to satisfy mental element of intention.

7. Whether malice can be transferred to person not in being at time of act causing death.

8. Whether doctrine of transferred malice operates where actus reas is infliction of stab wound on mother, not death of unborn child.

1. On 4 April 2002 the Appellant was driving a stolen vehicle in Fairfield, Sydney, at excessive speed and in an erratic manner.

2. After colliding with a car travelling in the same direction the Appellant's vehicle crossed the double white lines and collided head-on with a car driven by Mrs My Nghi Vongratsavai, who was 38 weeks pregnant.

3. Following her arrival at Liverpool Hospital, an emergency caesarean was performed on Mrs Vongratsavai and a male infant in poor condition was delivered.

4. The delivery occurred at 11.48am, the baby was pronounced dead exactly two hours later at 13.48pm

5. The Appellant was charged with a number of offences including, manslaughter and an alternative count of driving in a manner dangerous causing death, both in the aggravated and non-aggravated form.

6. He pleaded not guilty to these charges. Held, Appeal dismissed.

Such phrases as "reflex action" ... seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. ...his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless... (i.e., What is called by Ryan the Reflex action is voluntary). Causation

* Taylor and Owen JJ argued that death was caused by a combination of acts and that there were earlier, clearly voluntary, acts in the chain of events before the pressing of the trigger.

* However, for Barwick CJ, while this might have resolved the voluntary act issue, it simply created another problem -- causation. For the act must cause the death, and the earliest voluntary act which, according to Barwick CJ, the jury might reasonably have accepted as a cause of death, was the presentation of the gun. For Barwick CJ, the issue of causation presents a barrier to moving away from the "snapshot" approach to criminal liability, in order to make a more accurate assessment of the defendant's level of culpability.

Death must be of an alive person.

* Homicide does not cover death of an embryo or foetus in womb.
However, if a child is born alive but subsequently dies from injuries sustained in the womb, this may constitute unlawful homicide: AGs Ref (No. 3 of 1996) [1996] 2 All ER 10; Martin (1995) 85 A Crim R 587.
The definition of GBH has been extended to include the destruction of the foetus of a pregnant woman whether or not the woman suffers any harm: s4 Crimes Act 1900 (NSW) Martin (1995) 85 A Crim R 587

* Section 269 highlights the importance of the child being born alive before criminal responsibility can attach in respect of an act done before birth.

* Where a baby has proceeded in a living state from the mother's body it can be the subject (as a victim) in a charge of unlawful killing where the act which later leads to its death was done when it was still a foetus. Accordingly the indictment was capable of sustaining a conviction for unlawful killing of the child. It was then for the jury as to whether it did so on the facts. Attorney-General's Reference (No 3 of 1994)[1996] 2 All ER 10

* Murder or manslaughter can be committed where unlawful injury deliberately inflicted either to child or mother.

* Liability for murder not negatived where death caused solely in consequence of injury to mother rather than as consequence of injury to foetus. When is a child alive?

* On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not: s 20 Crimes Act 1900 (NSW)

* A newborn does not need capacity to breathe unaided, just needs 'any sign of life' (eg heartbeat): Iby
Iby [2005] NSWCCA 178

* There is no single test of what constitutes 'life' for the purposes of the born alive rule. The rule is satisfied by any indicia of independent life.Whether the rule has been satisfied is a question of fact for the tribunal of fact.

* Evidence of a child having breathed independently of the mother, including where the child's breathing is assisted by mechanical respiration, is evidence that a child was born alive.

* Evidence of a child's heart beating after delivery is sufficient evidence that a child was born alive. 5

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