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Chapter 2 Wilful Murder and Murder

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Chapter 2 Wilful Murder and Murder Chapter 2 Wilful Murder CONTENTS and Murder 39 Introduction 43 The Mental Element of Murder: Intention to do grievous bodily harm 51 Felony-Murder 65 Intention and Recklessness 75 The Distinction between Wilful Murder and Murder 37 Chapter2 2 Contents Introduction Intention and Recklessness History 39 Intention 65 Murder at common law 39 Intention includes recklessness 66 The Criminal Code (WA) 40 Intention means purpose and awareness that consequences are virtually certain to occur 67 Wilful murder 41 The meaning of intention is limited to purpose 68 Alternatives to wilful murder 41 Conclusion 69 Murder 42 Recklessness as a separate mental Mental Element of Murder: Intention to element of murder 70 do grievous bodily harm Arguments in favour of recklessness 70 Definition of grievous bodily harm 43 Arguments against recklessness 71 Availability of medical treatment 43 The Commission’s view 73 Meaning of ‘health’ 44 The Distinction between Wilful Murder Meaning of ‘likely’ 44 and Murder Definition of grievous bodily harm in other The law in other jurisdictions 75 jurisdictions 45 Arguments for retaining wilful murder and The grievous bodily harm rule 46 murder 75 Criticisms of the grievous bodily harm rule 46 Wilful murder is more serious than murder 75 Intention to cause an injury likely to endanger Community’s understanding 76 life 48 Juries rather than judges should determine Should the nature of the injury continue to the intention of the accused 77 be determined objectively? 49 Arguments for abolishing the distinction Felony-Murder between wilful murder and murder 79 Introduction 51 Consistency with other Australian jurisdictions 79 Historical origins 51 Abolition of the death penalty 80 The law in relation to felony-murder in Difficult to distinguish between an intention to Western Australia 52 kill and an intention to do grievous bodily harm 80 Sections 279(3)–(5) 52 Merciful or compromise verdicts 82 Section 279(2) 53 Impossible to categorise murders on the basis of specific factors 82 The felony-murder rule in other Australian jurisdictions 56 An intention to kill and an intention to cause an injury likely to endanger life are morally Arguments in favour of abolishing equivalent 83 felony-murder 57 The Commission’s recommendations 84 Felony-murder provisions are unnecessary 57 Subjectivity principle 59 Arguments in favour of retaining felony-murder 61 Moral culpability is equivalent to intentional murder 61 Policy considerations 62 Deterrence 63 Conclusion 64 38 Law Reform Commission of Western Australia – Review of the Law of Homicide: Final Report Introduction In Western Australia there are three general offences of whether the distinction between wilful murder and murder homicide: wilful murder, murder and manslaughter.1 In each in Western Australia should be retained. Western Australia case the physical element of the offence is the same, is the only jurisdiction in Australia with a separate offence that is, the accused caused the death of the deceased. of wilful murder. Every other Australian jurisdiction has only Wilful murder, murder and manslaughter are mainly two general offences of homicide: murder and distinguished by the presence or absence of a specific manslaughter. The Law Commission (England and Wales) mental element. Wilful murder and murder are the most has recently recommended that the offence of murder serious offences under the criminal law. Wilful murder is an should be separated into two offences: first degree murder unlawful killing with an intention to kill and murder is an and second degree murder.4 This issue requires a thorough unlawful killing with an intention to do grievous bodily harm. consideration of the differences between the moral Generally, an unlawful killing without either of these culpability of a killing that falls within the definition of wilful intentions is manslaughter. The only exception to this murder and a killing that falls within the definition of murder. general rule is felony-murder (sometimes referred to as constructive murder).2 In the case of felony-murder the HISTORY accused is convicted of murder even though he or she did not intend to harm anyone. One of the Commission’s guiding Murder at common law principles for the reform of the law of homicide is that killings committed with the necessary intention are more Historically at common law there was only one offence of serious than and should be distinguished from unintentional homicide. Sir Owen Dixon observed that up until the 13th killings.3 Because the felony-murder provisions in the Criminal century the law primarily focused on the physical act causing Code (WA) (the Code) fall outside this general principle, death.5 For example, the fact that a person was killed in the Commission considers in detail the appropriateness of self-defence or out of necessity did not result in an acquittal the felony-murder rule. but led to a pardon from the King.6 It has been reported that up until 1512 it was possible for certain accused to In this chapter the Commission also examines whether be excused by ‘reciting a verse from the Books of Psalms’ the mental elements of wilful murder and murder are (known as the ‘benefit of clergy’).7 Legislation enacted in appropriate and whether they should include the mental 1512 disallowed the benefit of the clergy to those who element of recklessness. For the purpose of the law of had killed with ‘malice aforethought’.8 By the 16th century homicide recklessness requires consideration of whether the distinction between murder and manslaughter the accused was aware that death (or grievous bodily emerged. A killing committed with malice aforethought harm) may result from his or her conduct. Currently in was punishable by death.9 Therefore there was a shift in Western Australia, recklessness as to death or grievous the focus from the physical act of killing to the mental bodily harm is not of itself sufficient to establish the mental state of the accused.10 The Law Reform Commission of element of wilful murder or murder. However, in some Ireland noted that malice aforethought originally required jurisdictions recklessness is a separate mental element for that the killing was planned or premeditated. However, murder. the concept of malice aforethought gradually expanded Apart from determining the appropriate mental element because it did not necessarily capture those killings that 11 of murder the Commission considers in this chapter were deserving of the death penalty. 1. The offences of infanticide and dangerous driving causing death are not appropriately described as general offences of homicide because they only apply in limited circumstances. Infanticide only applies where the accused is the mother of the deceased, and dangerous driving causing death only applies where the accused has driven a motor vehicle dangerously and has been involved in an incident which has caused the death of another person. 2. The felony-murder provisions under ss 279(2)–(5) of the Criminal Code (WA) (the Code) do not normally require proof of an intention to kill or an intention to do grievous bodily harm. In general terms liability for murder attaches because the accused caused the death of a person by a dangerous act committed for an unlawful purpose: see below ‘Felony-murder’. 3. See Introduction, ‘Guiding Principles for Reform’. 4. Law Commission (England and Wales), Murder, Manslaughter and Infanticide, Report No. 304 (2006) [1.36]. 5. Dixon O, ‘The Development of the Law of Homicide’ (1935) 9 Australian Law Journal Supplement 64. 6. Ibid 65. 7. Law Reform Commission of Ireland, Homicide: The mental element in murder, Consultation Paper No. 17 (2001) [1.01]. 8. Ibid. 9. Dixon O, ‘The Development of the Law of Homicide’ (1935) 9 Australian Law Journal Supplement 64, 66. 10. Ibid 64. 11. Law Reform Commission of Ireland, Homicide: The mental element in murder, Consultation Paper No. 17 (2001) [1.02]. Chapter 2: Wilful Murder and Murder 39 2 In 1877 Sir James Stephen defined malice aforethought murder.15 From the commencement of the Code until the as: an intention to cause death or grievous bodily harm; passage of the Criminal Code Amendment Act 1961 (WA) knowledge that the act which caused death would both wilful murder and murder carried a mandatory death probably result in death or grievous bodily harm; an intention sentence.16 From 1961 the death penalty only applied to to commit a felony; and an intention to oppose or resist the offence of wilful murder.17 The last person to be lawful arrest or custody by force.12 The Law Reform executed in Western Australia was in 1964 and capital Commission of Ireland explained that malice aforethought punishment for wilful murder was abolished in 1984.18 has been interpreted at different times to reflect what was considered to be the ‘proper scope of the mental Wilful murder and murder now both carry a mandatory element of murder’.13 The mental elements of wilful murder sentence of life imprisonment. The practical difference and murder under the Code are not far removed from the between the two offences relates to the minimum period historical concept of malice aforethought. The crucial issue of time that the accused must spend in custody before remains the same: what types of killings are sufficiently the Governor can consider release. A person convicted of serious to be classified as murder? Although the death wilful murder may be sentenced to either strict security penalty is no longer applicable, the penalty for murder is life imprisonment or life imprisonment whereas a person the most serious penalty available under Western Australian convicted of murder can only be sentenced to life 19 law – life imprisonment. In Chapter 7 the Commission has imprisonment. Section 91 of the Sentencing Act 1995 concluded that it is no longer appropriate that the penalty (WA) provides that a court must generally set a minimum for murder is a mandatory sentence of life imprisonment.
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