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Notes Causation 

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For an accused’s conduct to have "caused" a result, it must have "contributed significantly" to that result, or been a "substantial and operating cause" of it (Royall v R (1991) 172 CLR 378; R v Rudebeck [1999] VSCA 155; R v Stein [2007] VSCA 300; R v Withers [2009] VSCA 306; R v Aidid (2010) 25 VR 593). The act must be one that an ordinary person would hold, as a matter of common sense, to be a cause of the result. The mere fact that the accused’s conduct contributed causally to a result, or was a necessary cause of the result, is not sufficient (Royall v R (1991) 172 CLR 378). The accused does not need to be the sole cause of the result. A person can be criminally liable for something that has multiple causes, even if he or she is not responsible for all of those causes (Royall v R (1991) 172 CLR 378; R v Stein[2007] VSCA 300; R v Withers [2009] VSCA 306; R v Aidid(2010) 25 VR 593). The accused can "cause" a result by act or omission (Royall v R (1991) 172 CLR 378).

Homicide Intentional/reckless murder There are three ways in which murder can be committed: i.

The accused can cause the victim’s death while intending to kill or cause really serious injury, or being reckless as to that result; [1]

ii.

The accused can unintentionally cause the victim’s death in the course or furtherance of certain violent crimes; and

iii.

The accused can unintentionally cause the victim’s death in order to escape arrest.

Elements   

The accused committed acts which caused the victim’s death; The accused committed those acts voluntarily; [2] The accused committed those acts while: (a) intending to kill someone or cause them really serious injury; or (b) [if reckless murder has been left to the jury] knowing that it was probable that death or really serious injury would result.

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The accused did not have a lawful justification or excuse for those acts (such as self-defence, provocation, duress or sudden or extraordinary emergency).

Victim a Human Being The accused must have caused the death of a "human being" (R v Hutty [1953] VLR 338). "Death" is defined to mean the irreversible cessation of circulation of blood in the body, or the irreversible cessation of all function of the brain (Human Tissue Act 1982 s41). An unborn child is not classified as a "human being" for the purposes of murder and manslaughter (R v Hutty [1953] VLR 338). A child is treated as being "born" (and thus a "human being") when "he or she is fully born in a living state". This occurs when the child is "completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother" (R v Hutty [1953] VLR 338). Any evidence of independent existence will be sufficient for a child to be classified as a "human being" for the purposes of the law (R v Iby [2005] NSWCCA 178). The mere fact that a child is still attached by the umbilical cord does not mean it is to be regarded as unborn (R v Hutty [1953] VLR 338). While killing an unborn child will not be murder or manslaughter, it may be child destruction (Crimes Act 1958 s10).

Acts causing someone to die  For the accused to be found guilty of murder, the prosecution must prove, beyond reasonable doubt, that s/he committed the act or acts which are alleged to have caused the victim’s death. 

In most cases it will be clear which act or acts were the cause of death, and so little time will need to be spent addressing this issue (other than directing the jury that before they can convict the accused, they must be satisfied that s/he committed the relevant act or acts) (Ryan v R (1967) 121 CLR 205).

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Where additional directions are appropriate, the jury should be directed about the different ways the causal act can be identified, and instructed that it is for them to determine: o

What acts caused the victim’s death (see below); and

o

Whether the accused committed the relevant act or acts ( Ryan v R (1967) 121 CLR 205).

Acts That Caused Someone to Die 

The accused’s acts must have caused the victim’s death. That is, his/her acts must have "contributed significantly" to the death, or been a "substantial and operating cause" of it (Royall v R (1991) 172 CLR 378; R v Rudebeck [1999] VSCA 155).

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The acts must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death. The mere fact that the accused’s conduct contributed causally to the death, or was a necessary cause of it, is not sufficient (Royall v R (1991) 172 CLR 378).

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The accused’s acts do not need to be the sole cause of the death. A person can be criminally liable for a death that has multiple causes, even if he or she is not responsible for all of those causes (Royall v R (1991) 172 CLR 378).

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Previously, the law held that a delay of more than "a year and a day" between the accused’s acts and the victim’s death meant that the accused’s acts could not be regarded as a cause of that death. That limitation has been abolished (Crimes Act 1958 s9AA), and now applies only to offences alleged to have been committed before 19 November 1991.

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In many cases it will be unnecessary for the judge to do more than simply identify causation as an element of the offence. However, more detailed directions should be given if:

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o

Causation was a live issue in the trial; or

o

An undirected jury might consider causation to be a live issue.

The cases where causation will be a live issue will include those where: o

There were multiple possible causes of the death;

o

The death was delayed;

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There were intervening acts between the accused’s actions and the victim’s death; or

o

The accused is alleged to have caused the death indirectly (Royall v R (1991) 172 CLR 378).

Voluntarily act  The second element that the prosecution must prove is that the acts which caused the death were voluntary (Ryan v R (1967) 121 CLR 205). 

The issue of "voluntariness" concerns, at least, the accused’s conscious control of his or her bodily movements (He Kaw Teh v R (1985) 157 CLR 523).

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The terms "deliberate" and "willed" are sometimes used to describe the voluntariness requirement (Ryan v R (1967) 121 CLR 205).

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In murder trials it is orthodox to describe this element as requiring that the relevant acts be "conscious and voluntary", or "conscious, voluntary and deliberate". See R v Schaeffer[2005] VSCA 306.

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While a judge may use these terms to help explain the voluntariness requirement to the jury (R v Schaeffer [2005] VSCA 306), they do not need to be used in every case. The use of such alternative terms, and the extent to which they need to be explored, will depend on the circumstances of the case.

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If the term "conscious" is used care should be taken to ensure that it is not equated with voluntary action. The fact that an accused was conscious at the time of an act does not necessarily mean that act was committed voluntarily (see, e.g., R v Edwards [2005] VSCA 92).

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Knowledge of the circumstances that give an offence its criminal character is generally a component of intention, not volition. Thus an act remains voluntary even if it is performed in ignorance of fundamental facts that will determine culpability (R v O’Connor (1979) 146 CLR 64).

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While the jury should always be directed to consider this element, where voluntariness is not in issue it need not be examined in detail (Ryan v R (1967) 121 CLR 205).

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Terms such as "accidental", "unintentional", "involuntary" and "unwilled" all possess a degree of ambiguity. They can be used to signify either that: (a) The accused acts were not voluntary (addressing the second element);or (b) That the accused lacked the requisite intention to commit the crime (addressing the

third element) (Ryan v R (1967) 121 CLR 205). If such terms are used by counsel, the judge should take care to ascertain precisely which element is being addressed, and charge the jury accordingly.

Reckless murder  It is not appropriate to direct a jury about reckless murder in every case. The jury should only be directed about "reckless murder" where the evidence can properly support a conclusion that the accused acted recklessly (Pemble v The Queen (1971) 124 CLR 107; R v Barret [2007] VSCA 95). [4]

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In the context of murder, to commit an act "recklessly" is to commit that act knowing that someone will probably die or suffer really serious injury (R v Crabbe (1985) 156 CLR 464).

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The word "probable" means "likely to happen". It can be contrasted with something that is merely "possible" (R v Crabbe (1985)156 CLR 464).

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To have acted recklessly, the accused must actually have known that death or really serious injury would probably result from his or her acts. It is not sufficient for that danger to have been obvious to the reasonable person, or to the members of the jury (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557; R v Barret [2007] VSCA 95).

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The jury may use the fact that a reasonable person would have appreciated the probability of death or really serious injury to infer that the accused had such an awareness (Pemble v The Queen (1971) 124 CLR 107).

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However, where such reasoning is open the jury must be warned not to conclude that the accused foresaw the probability of death or really serious injury simply because a reasonable person would have appreciated that probability (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).

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Use of the word "reckless" should be avoided when charging the jury in murder trials, as it is liable to be confusing (La Fontaine v R (1976) 136 CLR 62).

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Similarly, the word "might" should not be used. Recklessness is not established when the accused knew that particular consequences "might occur". The accused must have known that those consequences "would probably occur" (R v Crabbe (1985)156 CLR 464; R v Campbell [1997] 2 VR 585).

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"Probable" is not a mathematical term. The accused does not need to have mathematically weighed the probability of death or really serious injury occurring, and the jury should not attempt to translate the accused’s knowledge into terms of mathematical probability (Boughey v The Queen (1986) 161 CLR 10).

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It will generally be sufficient if: (a) The jury is directed to consider whether the accused knew that death or really serious injury was the probable or likely consequence of his or her acts; and (b) Reference is made to the distinction between what is probable or likely on the one hand, and what is only possible on the other (R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; R v Faure [1999] 2 VR 537).

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If a jury is to be directed on both reckless murder and involuntary manslaughter (whether by unlawful and dangerous act or by criminal negligence), it is vital that the directions draw an appropriate contrast between the mental states required for the two offences (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).

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Where recklessness is to be found by inference, the trial judge must identify the relevant evidence, and the inferences which can legitimately be drawn from that evidence (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).

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The jury should be directed that the accused's circumstances are relevant to their determination of his or her state of mind. These circumstances may include age, educational

and social background, emotional state and state of sobriety (Pemble v The Queen (1971) 124 CLR 107; R v Barret [2007] VSCA 95). The element of intention can be met from a parties recklessness. As in the party intended or was reckless to kill the purpose R v Crabbe    

Crabbe got drunk and ejected from bar Came back later, drove truck through building 5 killed Argued no murder as he didn’t know people were inside

Held  

Being wilfully blind is no excuse to recklessness Would have reasonably known people were in there

Statutory constructive murder (s 3A) (1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally. (2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

Common law (resisting arrest) constructive murder Resisting Arrest: Resisting arrest murder •D commits murder if: –(a) D causes the death of V; –(b) by violently –(c) resisting, preventing or escaping from lawful arrest. •R v Ryan and Walker [1966] VR 553 (B & A p.117-118) –‘In our opinion, it is clear law that the killing of a person by the intentional use of force, knowingly to prevent such person from making an arrest which he is authorised by common law to make, is

murder even if the person using the force did not intend to kill or do grievous bodily, and even if he did not foresee that he was likely to do so’

Unlawful and dangerous act manslaughter This form of manslaughter has the following four elements, each of which the prosecution must prove beyond reasonable doubt: i.

That the accused committed an act that caused the death of another person;

ii.

That the relevant act was committed consciously, voluntarily and deliberately;

iii.

That the relevant act was "unlawful"; and

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That the relevant act was "dangerous".

Elements explained The act caused the victim’s death The first element that the prosecution must prove is that the accused committed an act that caused the victim’s death (R v Stein (2007) 18 VR 376; R v Summers [1990] 1 Qd R 92; Aidid v R (2010) 25 VR 593). For offences committed on or after 1 November 2014, the Crimes Act 1958 s4A provides that: (4) A single punch or strike may be the cause of a person's death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person's head or neck but another injury resulting from an impact to the person's head or neck, or to another part of the person's body, caused by the punch or strike. Example If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death. Crimes Act 1958 s4A(4) is not a deeming provision, but recognises that the cause of death, for the purpose of manslaughter, may include injuries sustained as a consequence of the accused’s punch or strike. This does not change existing principles of causation. For information concerning causation, see Bench Notes: Causation and Bench Notes: Intentional or Reckless Murder. The act was conscious, voluntary and deliberate The second element that the prosecution must prove is that the relevant act was committed consciously, voluntarily and deliberately (Ryan v R (1967) 121 CLR 205; R v Haywood [1971] VR 755; R v Winter [2006] VSCA 144; R v Williamson (1996) 67 SASR 428). While the prosecution must prove that the accused acted voluntarily, they do not need to prove that the accused intended to cause death or really serious injury (R v Haywood [1971] VR 755; R v Vollmer [1996] 1 VR 95). For information on this element, see Bench Notes: Intentional or Reckless Murder.

The act was unlawful The third element the prosecution must prove is that the relevant act was ‘unlawful’. To be unlawful, the act must have involved a breach of the criminal law ( Wilson v R (1992) 174 CLR 313; Pemble v R (1971) 124 CLR 107). However, it seems that not all breaches of the criminal law are classified as “unlawful” for the purpose of this element. Although not clear, it appears that only offences requiring proof of mens rea fall within that category (R v Nguyen (Ruling No 2) [2010] VSC 442). Offences dependent on negligence or gross negligence therefore may not qualify as “unlawful”. Deaths resulting from such offences may need to be determined under the principles of negligent manslaughter instead (see Boughey v R (1986) 161 CLR 10; Andrews v DPP [1937] AC 576. See also R v Powell [2002] 1 NZLR 666). As acts that give rise to civil liability are not a breach of the criminal law, they are not unlawful for the purpose of this element (R v Lamb [1967] 2 QB 981). While the offence most commonly relied upon to prove unlawfulness is assault, other offences that have been relied upon include attempted assault, attempted robbery, burglary, unlawful administration of drugs and discharging a firearm in a public place (see Withers v R (No 2) [2010] VSCA 151). The act was dangerous  

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The fourth element the prosecution must prove is that the relevant act was "dangerous". The test for "dangerousness" is objective. It requires the jury to find that a reasonable person in the position of the accused, performing that act, would have realised that he or she was exposing the deceased to an appreciable risk of serious injury (Wilson v R (1992) 174 CLR 313; R v Holzer [1968] VR 481. See also R v Klamo (2008) 18 VR 644). The test of an appreciable risk of serious injury describes the minimum proof required to establish manslaughter. Proof that the act created a greater risk, such as an appreciable risk of death, does not preclude a finding that the act was dangerous (R v Fragomeli [2008] SASC 96). It is not sufficient for the jury to find that the reasonable person would have realised that the unlawful act was likely to expose the deceased to an appreciable risk of serious injury. They must find that the reasonable person would have realised that he or she was exposing the deceased to such a risk (R v Gould [2009] VSCA 130). The jury does not need to find that the reasonable person would have thought that serious injury was "certain" or "probable". They only need to find that the reasonable person would have realised there was an "appreciable risk" of such injury (R v Holzer [1968] VR 481)

Reckless murder vs manslaughter   

Where manslaughter by unlawful and dangerous act is left as an alternative to reckless murder, the judge must clearly explain the difference between: The subjective test for reckless murder, which requires the jury to find that the accused knew that it was probable that death or really serious injury would result from his or her acts; and The objective "dangerousness" test for manslaughter, which requires the jury to find that a reasonable person would have realised that he or she was exposing the deceased to an appreciable risk of serious injury (R v TY (2006) 12 VR 557; R v Barrett [2007] VSCA 95; Pemble v R (1971) 124 CLR 107 per Barwick CJ).

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Failing to provide a clear explanat...