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 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 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 upon some person, or done in an 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) - to kill causing death (consequence) OR AND - Intention to inflicted GBH - Causal link () 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 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 UK) - FACTS: V stabbed by D, treated by doctor but later died as doctor did not realise full extent of injuries (that lung had been punctured) à treatment was “thoroughly bad” and D alleged that if V had received correct medical treatment he would have lived - REASONING: negligence of medical staff does not break the chain of causation in murder cases, where the initial act of stabbing is still the operating cause of death - PRINCIPLE: Lord Parker CJ – If at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound … Only if it can be said that the original wounding is merely the setting in which another cause operates, then can it be said that the death does not result from the wound. o Putting it another way, only if the second cause is so overwhelming as to make the original merely part of the history, then can it be said that the death does not flow from the wound formed by the act of the accused. o However, the accused bears no burden of proving such an overwhelming cause and that the burden remained on the Crown to prove that the act of the accused caused the death, despite the presence of a cause which the defence might claim was overwhelming.

compare R v Jordan (1955 UK) - FACTS: V stabbed by D, V was taken to hospital where he was given antibiotics twice to which V was intolerant to, and given abnormal quantities of liquid which clogged lungs à V died of pneumonia 8 days after admission to the hospital à at the time of death that his wounds were starting to heal - HELD: because medical treatment was “palpably wrong”, death was not caused by stab wound, but by exceptional medical negligence that may constitute a novus actus interveniens, capable of absolving D of liability for subsequent injury or death - REASONING: conceded that the death of the victim was not “consequent upon the wound inflicted” but rather as a result of the negligent medical treatment

Medical Treatment Cases R v Evans & Gardiner (No. 2) (1976 Vic) - FACTS: E & G accused stabbed V in a prison brawl, V initially recovered thanks to medical intervention and resumed normal activities, but died suddenly in the year after of bowel blockage à the autopsy showed that a common complication had arisen from the surgery, and had not been caught in time - ISSUE: whether the stabbing act has caused a death which follows, in spite of the intervening act; whether the stabbing act is still an operating and substantial cause of death; whether the doctor’s failure to diagnose broke the chain of causation - HELD: Although doctors failed to diagnose condition, that failure was not the cause of death o The blockage caused death, and blockage was caused by stabbing, which was still an operating and continuing cause of death o Lapse of time itself does not break the chain of causation - PRINCIPLE: The accused remains liable their conduct is still a substantial operating cause of the result when it occurs. This is because his or her acts or omissions can still properly be said to be the cause of the act, even if some other cause is also operating. Only a positive act or omission will serve to break the chain of causation if it can be shown that the act or omission accelerated the death, so that it can be said to have caused the death and thus to have prevented the unlawful act to actually cause the death.

LAWS1016 CRIMINAL LAW FULL NOTES

b) where the alleged intervening conduct is an act of nature

Hallett v R (1969 SA) - FACTS: D alleged V made homosexual advance on him, V threatened to kill D / cut of his sexual organs à fight results in D choking V and V became unconscious at water’s edge on the beach à D left V (still moving) and V drowned in water à after realising V was dead, D cuts off V’s genitals and buried body - HELD: appeal of act of nature dismissed and D convicted of murder because at the time of death, the original wound was still the operating and substantial cause à there is a causal connection - REASONING: since D left V on the seashore unconscious (first situation), and he drowned when the tides came in (second situation), the act of D still caused V’s death o If V had moved himself into the sea and drowned himself, then it might break the chain of causation - PRINCIPLE: The operation of ‘ordinary natural causes’ will be capable of amounting to novus actus interveniens where the extraordinary (as opposed to the ordinary) operation of natural forces might be regarded as breaking the chain of causation e.g. earthquake, tsunami

c) where the alleged intervening conduct is the act of the deceased

Refusing Medical Treatment / Rejecting Medical Advice will NOT Break the Chain of Causation

R v Holland (1841 UK) - FACTS: D violently assaulted V with iron bar, causing injuries to hand and especially to finger and got blood poisoning, doctor advised amputation, but V refused and died as a result - HELD: D caused V’s death because V’s refusal to have amputation no causal break - PRINCIPLE: refusing medical treatment, even where unreasonable, will not be a supervening event

R v Blaue (1875 UK) - FACTS: D demanded sex from V who refused, stabbed V in lungs à V needing emergency surgery + blood transfusion, V is a Jehovah’s Witness and refused (fully aware of import of transfusion) and died o D argued: V’s unreasonable rejection of transfusion broke chain of causation o Crown admitted that if she had had blood transfusion she would have lived - HELD: V’s rejection of blood transfusion did not break the chain of causation as V was entitled to refuse a blood transfusion o D was acquitted of MRD, but guilty of MNS, wounding with intent to inflict GBH, indecent assault = sentenced to life - REASONING: following Jordan and Smith, if at the time of death the original wound is still the operating cause and a substantial cause, then the death can properly be said to be the result of the wound, notwithstanding that some other cause of death is also operating - Sir Matthew Hale in Holland (1841) – “He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself” - EGGSHELL SKULL RULE: A person who uses violence on another is required to “take victim as he found them” including their characteristics and beliefs as a whole person, not just their physical condition. - Distinguish with R v Burns

LAWS1016 CRIMINAL LAW FULL NOTES

R v Bingapore (1975 SA) - FACTS: V severe injuries from D, but left hospital against medical advice, V then rushed back needing emergency treatment but died à D convicted of MDR - HELD: no causal break even though V acted to detriment - REASONING: distinguish Jordan, the chain of causation had not been broken by the man’s voluntary departure from the hospital, and that the V’s act causing injuries from which he died did not cease to be a causative act because V had thereafter acted to his detriment - PRINCIPLE: There is no break in causation if there was no new medical cause, rather a mere loss of possible opportunity of avoiding death from a still operating and substantial cause, namely the violence inflicted by D upon V.

Fright or Self-Preservation Cases Royall v R (1991) - FACTS: R seriously assaults V, who locks herself in bathroom of 6th floor unit, and R forced door open only to see V commit suicide à there had been a history of violent arguments, blood throughout unit, evident violent on night of V’s death, D admitted to assaulting V o P allege D murdered V either by (1) forced her out window; (2) fell from window when retreating from attack; (3) that she jumped from window based on well founded and reasonable apprehension that she would be subjected to threatening violence - ISSUE: whether a voluntary act, committed because of well-founded fright or self-preservation, break the chain of causation required to constitution AR - HELD: D unsuccessfully appealed conviction of MRD à response of V was reasonable and proportionate for the causal chain to remain intact - REASONING: Mason CJ at [386] – “where the conduct of the accused induces in the V a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the V would seek to escape and the V is injured in the course of escaping, the injury is caused by the accused’s conduct” o Caution by Mason CJ – person fearful for own safety are forced to react on spur of moment, will not always make sound judgment, and may act irrationally, BUT this reaction may still be reasonable - NATURAL CONSEQUENCE TEST per Mason CJ o Chain of causation is unbroke if § V had well-founded apprehension of physical harm if V remained § V‘s escape was reasonable and proportionate § V’s voluntary act was a natural consequence of D’s acts - COMMON SENSE TEST on the facts o Clear evidence of violence throughout unit, and that whatever victim did, whether she jumped from bathroom window or fell from window trying to flee, her actions were totally understandable and in no way ‘unreasonable’. - REASONABLE FORESEEABILITY TEST per Brennan J o Minority support as it might confuse the jury o Chain unbroken as long as V’s actions foreseeable (or reasonably foreseeable) o E.g. if V’s actions a complete overreaction and unforeseeable à causal chain broken

LAWS1016 CRIMINAL LAW FULL NOTES

McAuliffe v R (1995 NSW) - FACTS: 3 D’s brutally ‘gay-bash’ V and robbed him, left injured near cliff edge at Tamarama, fell to death - HELD: convicted of constructive MRD - REASONING: o You cannot convict the accused of murder or manslaughter unless you are satisfied that the death of the deceased was causally related to an act for which the accused was responsible. To be a cause of death, the act for which the accused is responsible, need not be the sole cause, but must be a substantial or significant cause of bringing about death viewed in a commonsense and practical way. o As a matter of law where the conduct of a person for which the accused is responsible induces in the V a well-founded apprehension of physical harm (such as to make it a reasonable consequence that the victim would seek to escape), then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the V is reasonable or proportionate having regard to the nature of the conduct of the accused or for which the accused is responsible, and the fear it is likely to have provoked. - PRINCIPLE: avoid reasonable foreseeability test, and use natural consequence test o Whether conduct of D induce in V a well-founded apprehension, such as to make it a reasonable consequence that V would seek to escape

- When the jury determines whether the accused’s act caused the deceased’s death in a fright or self-preservation case, it is engaged in an enquiry that, in substance, does not really differ from that involved in any other case where there is a controversial causation question. - In other words, a jury’s finding that it is reasonably possible that the deceased’s response to the accused’s conduct was an unreasonable or disproportionate one may amounts to a decision that the accused’s conduct was not a substantial cause of the deceased’s death. - For the causal chain to remain intact, the accused’s conduct must ‘substantially’ or ‘significantly’ contribute to the death: Reynolds v R (2015) at [42]; Robb v R [2016] at [56]; Swan v R [2018] at [90]

Note that reasonable and proportionate response is to be considered based on the circumstances (RIK) and can consider D’s actions and V’s fear (McAuliffe) RIK v R (2004 NSW) - FACTS: at Redfern station, D yells abuse and move towards V in threatening manner, where V fled onto track and was killed by train, man left station giggling à event merely took 28 seconds - HELD: up to jury to determine whether actions of V were ‘reasonable or proportionate’ in the circumstance o V, in fear for safety, had to make quick decision o V thought tracks were best option to avoid D and with no great risk o V made mistake in agony of moment when train approached, maybe terrified by sound of horn o ARGUE: panic might make reaction perfectly reasonable, in the sense of ‘understandable’ - REASONING: although multiple avenues for escape, although poor choice, panic by V may make the reaction reasonable in the circumstances - Q: whether RIK is significant extension to law regarding UDA MNS?

Suicide (rare) Stephenson (1933 US) - FACTS: victim of brutal rape (including severe injuries all over her body that were not fatal) à took poison ‘distracted by pain and shame’ and died - HELD: taking poison did not break the causal chain à V’s decision to suicide caused by D’s assault which caused death - UNCERTAINTY: old authority that suggests no break in chain if D’s actions substantially contributed to V’s decision to take own life Hallett (1969 SA): if V had committed suicide after physical assault by D, that MIGHT have broken the causal chain Justins (2010 NSW): V suffering Alzheimer’s took Nembutal supplied by D à uncertainty as to V’s mental capacity - if V did not have mental capacity, D caused V’s death - if V did, then V’s voluntary action broke causal chain LAWS1016 CRIMINAL LAW FULL NOTES

SCAFFOLD – Principle test for determining causation: - D’s actions were an operating and substantial cause of V’s death: Smith; Evans & Gardiner (No. 2) - Also looks at common sense of juries: Royall - The ‘but for’ test is no longer valid: V would not have died but for D’s actions - The accused remains liable if his or her conduct is still a substantial operating causes of death, and this chain of causation may be only broken by a novus actus interveniens: Evans & Gardiner (1) by act of V (escape, suicide, rejecting treatment, independent act): Royall, Blaue, McAuliffe (2) by act of 3rd party (medical treatment, independent act): Evans & Gardiner (3) by act of God: Hallett - Where there is or may be more than one factor contributing to the death, the question is for the jury to establish whether P has established BRD that the act of the accused caused the death: Evans & Gardiner

v) : act or omission causing death

Death Human Tissue Act 1983 (NSW) s 33 When death occurs A person has died when there has occurred: a) irreversible cessation of all function of the person’s brain, or b) irreversible cessation of circulation of blood in the person’s body. - E.g. a person being maintained on life support equipment following an attack by D is already dead if all of their brain functions have ceased irreversibly

Life - MRD: Crimes Act s 20 – murder of child, child is born alive if it has breathed, and is wholly born into world, whether independent circulation or not - MNS: Iby (2005 NSW) – any sign of life after delivery sufficient, including heartbeat, not necessary to show capacity to breathe unaided - NOTE: cannot commit either offence against a foetus