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Laws1016 Criminal Law Notes Sample

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Laws1016 Criminal Law Notes Sample LAWS1016 CRIMINAL LAW FULL NOTES LAWS1016 CRIMINAL LAW NOTES SAMPLE SEMINAR 5 – Homicide I: Murder i) Generally HOMICIDE - Definition: unlawful killing of a human being and concerns fatal offences o ‘Unlawful’ killing is distinct from ‘lawful’ killing e.g. medical negligence, war, law enforcement o No offence in NSW called homicide, it is an umbrella term covering unlawful killings o NSW has replaced the common law offence of murder with s 18 o However, the common law doctrine of manslaughter survives in NSW under s 18 (1)(b) Murder vs Manslaughter - Lane v R: discusses the distinction between murder and manslaughter o s 18 gives us the circumstances that constitute murder BUT no such equivalent for manslaughter o Distinction is based on the level of culpability, which often depends on the level or type of MR o Concept that there are different levels of blameworthiness, and should be reflected in different charge o Someone has to have very high degree of culpability to be convicted of murder – morally or mentally reflects a degree of rational choice o Distinction was important historically where courts had no discretion in sentencing for murder. Now, the distinction has been subject to criticism, however, it is likely to be maintained due to: § The belief that there is greater stigma attached to a conviction of murder; § The circumstance that the abolition of mandatory life imprisonment has removed the impetus for reform - Examples, are the accused culpable in the following circumstances? o Parents rely on homeopathic remedies for their child’s eczema, reject conventional medicine, child dies § Likely that there is no ‘intent’ to murder § Might depend on whether or not parents knew the remedies would lead to death § Parents would be guilty of manslaughter by criminal negligence à both breached their parental duty of care to the child o Two men are recorded walking into a storage unit, and about 1⁄2 hour later seen dragging a heavy looking surfboard cover out placing it in a station wagon. The prosecution states that the Crown cannot prove which of the two men pulled the trigger, resulting in the death of a young man § Doctrine of complicity applies: there was a joint criminal enterprise § Criminal liability is primary: if you’re involved in a joint criminal enterprise, both parties can be found guilty of the primary offence o Unprovoked, an intoxicate young man punches another young man, who then falls and hits his head on the ground and subsequently dies. The accused did not mean to kill nor inflict GBH § Successfully convicted of manslaughter: Thomas Kelly R v Loveridge Crimes Act 1900 (NSW) s 18(1) Murder and manslaughter defined (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. LAWS1016 CRIMINAL LAW FULL NOTES 2 types of murder under s 18(1)(a) 1. Murder with intent OR reckless indifference to human life (an act or omission that causes death) 2. Constructive murder (while you are committing a serious crime [punishable by 25 years] and while committing this crime somebody dies) Penalty for murder is imprisonment for life OR for 25 years - Court discretion: s 19A - EXCEPTION mandatory life imprisonment for murder of police officer: s 19B ELEMENTS OF MURDER s 18(1) AR MR - Voluntary act or omission (conduct) - Intention to kill causing death (consequence) OR AND - Intention to inflicted GBH - Causal link (causation) between the OR accused’s voluntary act and the - Reckless indifference to human life victim’s death (awareness of the probability of death) AND - Existence of death ii) CONDUCT ELEMENT: omission causing death - Barr J at Taber (2002) – any person who deliberately puts another in danger comes under a legal duty to remove that danger; could also be analysed in terms of a continuing act starting with the initial attack and the ending when the victim died (rather than an act followed by an omission) - The basic principles of governing criminal liability for omissions are: o D must have been under a legal duty to act to forestall the causation of death; o D must have failed to fulfil this legal duty; o D must have concurrently possessed MR - To be responsible for an omission, D must have a legal duty to act: R v Taktak o PRINCIPLE: any person who deliberately puts another in danger comes under a legal duty to remove that danger - A common example of murder by omission is on the basis of failing to fulfil a parental duty of care R v SW and BW (No 1) [2009] - FACTS: 7 yo child Ebony died from chronic malnutrition caused by starvation and profound neglect over number of months à mother (SW) was convicted of MRD and the father of negligence MNS for breaching the DOC imposed on them as parents to provide adequate nourishment and medical attention - HELD: in sentencing the mother to life imprisonment, the judge indicated that the jury’s verdict involved at least an acceptance that she fully realised the probability of Ebony dying and deliberately omitted to do anything about it (reckless indifference to human life) o “Not satisfied that SW set out upon a long term plan to kill Ebony … but satisfied that she watched Ebony deteriorate over a lengthy period of time and that Ebony’s state in the last few weeks of her life, at least, would have been obviously dire. She exercised a deliberate choice to do nothing that might save her as a situation went from possibility to probability to certain that Ebony would die without intervention” – (No. 3) at [166] - SENTENCE: majority upheld conviction but reduced the sentence to 40 years’ imprisonment by a majority, with a non-parole period of 30 years - PRINCIPLE: for the Crown to secure a murder conviction, it does not need to prove that the accused performed an act causing death à murder can be committed or caused through omission of duty of care where one is owed LAWS1016 CRIMINAL LAW FULL NOTES iii) CONDUCT ELEMENT: importance of identifying the precise act or omission - Usually the relevant act or omission will easily be identified, but - In exceptional cases it may be possible that 2 or more acts/omissions are capable of being regarded as the crucial act, the jury (under proper direction from judge) decides which one to focus on Ryan v R (1967) – key case of doctrine of constructive murder - FACTS: D committed armed robbery on a service station à in process of tying up attendant D flinched at C’s sudden movement and discharged shotgun killing V à claimed it was an accident and that he wasn’t in control of his body when reflexes took over - HELD: convicted of constructive murder à he consciously put himself in that situation o Barwick CJ at [166] “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” - PRINCIPLES: Which act, with requisite precision, qualified for one of the conditions under s 18 à the choice of the act causing death is not for the presiding judge, it is essentially a matter for the jury under proper direction o Barwick CJ at [218] “the earliest act of the applicant which, in my opinion, could have been selected by the jury as the act causing death was the presentation of the gun towards the back of the deceased after, at the applicant's bidding, he had turned around to enable his hands to be tied behind him. Thus at the most, the jury could choose the presentation of the gun in the circumstances or its subsequent discharge as the act causing death.” - Also cited in Royall v R; Arutlthilakan v R iv) CONDUCT ELEMENT: causation - The accused’s acts or omissions must have caused the death of victim à P must prove that there is a sufficient link between the act or omission of D and the death of V - Causation is a question of fact to be decided by the jury - Causation is usually not an issue, but if more than one factor contributing, jury is responsible for deciding causation (what caused the death): Arutlthilakan - But chain of causation may be broken by a novus actus interveniens (a) by act of V (escape, suicide, rejecting treatment, independent act) (b) by act of 3rd party (medical treatment, independent act) (c) by act of God - Where there may be more than one factor contributing to the death, the question is for the jury to determine whether the Crown has established BRD that the act of the accused caused the death: Evans & Gardiner a) where the alleged intervening conduct is the act of a third party Independent Act Cases Pagett (1983 Eng) - FACTS: D used girlfriend V as human shield and fired at police, who returned fire and killed V - HELD: D ‘caused’ V’s death - REASONING: whilst free and deliberate intervention of 3rd party may break chain, the police’s act was an reasonable act performed in self-defence Martin Place Lindt Café siege - FACT: one hostage (Katrina Dawson) shot by rebounding police bullets when café stormed - HELD: deaths ‘caused’ by hostage taker LAWS1016 CRIMINAL LAW FULL NOTES Medical Negligence Cases R v Smith (1959
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