Homicide PDF

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Problem. Question scaffold for homicide...

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INVOLUNTARY MANSLAUGHTER BY AN UNLAWFUL ACT

In this scenario,

Problem 1: Actus Reus In order to establish the actus reus for manslaughter by an unlawful act it is necessary to consider: 

That the act by the offender was unlawful according to criminal law (R v Pemble)



That the unlawful act of the offender was the cause of the victim’s death

Within this scenario, the act committed by ____ is a criminal offence according to _______. This therefore satisfies the held judgement inn R v Cornelissen [2004], that any breach of criminal law must be first proven.

For the accused to be convicted of manslaughter it must be proven that their actions caused the death of the victim, as established in R v Wilson. Causation can be established by applying the operating and substantial cause test founded by R v Royall. This test deems that an act that was a substantial and operating cause at the time of death will maintain causation and be deemed the cause of death. It is evident that within this scenario, ________ was the cause of __’s death, and subsequently the actus reus can be established.

Problem 2: Mens Rea In order to prove the mens rea for this offence, it is necessary to prove the offender had the necessary mens rea for the unlawful act as well as the mens rea for involuntary manslaughter by an unlawful act.

The necessary mens rea for the offence of manslaughter by an unlawful act involves the consideration of: 

Whether a reasonable person would have known that they were exposing others to an appreciable risk of serious injury (R v Wilson)

According to R v Wilson, an acceptable risk means a risk that is ‘real or significant’, rather than ‘remote or fanciful’. Additionally, the case defines ‘serious injury’ as injury that is more than ‘trivial or negligible’. In R v Cornelissen was held that a reasonable person is one who is placed in the same position as the accused. When applying this to the facts of the scenario, ________.

INVOLUNTARY MANSLAUGHTER BY CRIMINAL NEGLIGENCE

In this scenario,

Problem 1: Actus reus As manslaughter is not defined within statutory law, it is necessary to adhere to R v Lavender when establishing the actus reus of manslaughter by criminal negligence. Therefore, it is necessary to consider whether: 

The act of the offender was conscious and voluntary



The act of the offender caused the death of the victim

To establish sufficient mens rea, the actions of the offender must be voluntary in accordance with R v Ryan. This precedent stipulates that the action of the offender must be a ‘willed’ act. This coincides with the judgement held in R v He Kaw The that for criminal prosecution the act must be a ‘conscious control of bodily movement’. Within this scenario,

For the accused to be convicted of manslaughter it must be proven that their actions caused the death of the victim, as established in R v Wilson. Causation can be established by applying the operating and substantial cause test founded by R v Royall. This test deems that an act that was a substantial and operating cause at the time of death will maintain causation and be deemed the cause of death. It is evident that within this scenario, ________ was the cause of __’s death, and subsequently the actus reus can be established.

Problem 2: Mens Rea

As the mens rea for involuntary manslaughter by criminal negligence is not defined within the Crimes Act 1900 (NSW), to establish what mens rea is necessary to prove for this offence, common law must be looked at. According to the rules set out in R v Nydam [1977] it is necessary to consider: 

Whether the conduct of the accused fell short of the standard of care exercised by a reasonable person



Whether the reasonable person would have appreciated a probability of death or grievous bodily harm

It must be proven that the offender’s actions fell short of the standard of care that a reasonable person would have exercised had they been in the same circumstances. An objective assessment as to what a reasonable person would have done in the circumstances is necessary in defining the standard of care. This was upheld in R v Nydam where it was established that a breach in a duty of care towards the victim established as ‘reasonable’, was sufficient negligence for the actus reus of involuntary manslaughter by criminal negligence. According to R v Lavender a ‘reasonable person’ is one who has the knowledge of the surrounding circumstances that the offender acted within. Therefore, when applying these principles to this scenario, it is evident that

According to R v Wilson, an acceptable risk means a risk that is ‘real or significant’, rather than ‘remote or fanciful’. Additionally, the case defines ‘serious injury’ as injury that is more than ‘trivial or negligible’. The objective test of the ‘reasonable person’ must also be applied to this element of mens rea, in establishing what was a reasonably foreseeable risk of death or grievous bodily harm.

VOLUNTARY MANSLAUGHTER

The necessary actus reus for voluntary manslaughter is the same as murder. Therefore, it is necessary to consider: 

The accused committed a voluntary act or omission



The act or omission of the accused caused the death of the victim

To establish sufficient mens rea, the actions of the offender must be voluntary in accordance with R v Ryan. This precedent stipulates that the action of the offender must be a ‘willed’ act. This coincides with the judgement held in R v He Kaw The that for criminal prosecution the act must be a ‘conscious control of bodily movement’. Within this scenario,

For actus reus to be made out it is necessary to prove causation. This. Means the actions of the offender must be the cause of the victim’s death. According, to R v Royall, this will be a decision made by the jury, and one that is regarded as a ‘common sense’ test of the facts of the case. There are four prominent tests for causation; test of reasonable foreseeability (R v Royall), substantial cause test (R v Hallett), natural consequence test (R v Royall) and the butfor test.

The test of reasonable foreseeability is an objective test where the jury decides, according to R v Royall, whether a ‘reasonable person’ would have foreseen the victim’s death arising from the conduct of the offender. According to R v Lavender a ‘reasonable person’ is one who has the knowledge of the surrounding circumstances that the offender acted within.

The substantial cause test is one that considers while a number of factors may have contributed to the death of the victim, according to R v Hallett, a finding of causation is necessary if it was the conduct of the offender that was the substantial or significant operating factor in the death of the victim. The natural consequence test is applied objectively where the offender’s conduct induces within the victim a well-founded, reasonable and proportionate apprehension of physical harm such as to make it a natural consequence that the victim would seek to escape from the offender. It was upheld in R v Royall that if the victim dies during such an escape, causation is to be upheld and the offender would have caused the victims death. The but-for test is one that considers, but for the conduct of the offender, the victim would not have died. This test, however, was rejected in R v Arulthilakan.

Substantial impairment – Due to ______ would be able to employ the partial defence of substantial impairment to lessen the charge of murder to voluntary manslaughter. According to s23A(1 of the Crimes Act 1900 (NSW) a person who would otherwise be guilty of murder is not to be convicted if: 

(a) at the time of the act causing death, the person’s capacity to understand events, judge whether the person’s actions were right/wrong or to control themselves, was substantially impaired by an abnormality of mind arising from an underlying condition, and



(b) impairment was so substantial as to warrant liability for murder being reduced to manslaughter

According to s23A(8) an underlying condition is defined as a “pre-existing mental or physiological condition, not of a transitory kind”. Additionally, R v Byrne [1960] expanded substantial impairment to include the ‘abnormality of the mind’, establishing that a “state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal” can be grounds for a successful application of the substantial impairment defence.

Self-defence/excessiveself-defence

According to s418(1) of the Crimes Act 1900 (NSW), a person cannot be held criminally responsible if the act was done in self-defence. According to s418(2) for self-defence to be applicable to the crime, the person had to believe their conduct was necessary to: 

(a) defend themselves/another



(b) prevent/terminate unlawful deprivation of their/another’s liberty



(c) protect property from unlawful taking, destruction, damage or interference,



Prevent criminal trespass to any land/premises or remove person committing any such trespass,

And the conduct is a reasonable response in the response in the circumstances as he or she perceives them.

According s421(1) excessive force that inflicts death can be brought from a murder charge to that of voluntary manslaughter if: 

(a) the person uses force that involves the infliction of death, and



(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,



but the person believes the conduct is necessary –



(c) to defend himself or herself or another person, or



(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person

This was upheld in R v Grant [2014] where it was held that excessive-self defence is using force that inflicts death and that the conduct is not a reasonable response to the circumstances, however, the offender believed the conduct was necessary to defend themselves from another person

In accordance with Colissimo v DPP [2006] the response to the situation must be deemed necessary in order for the defence of self-defence to be upheld.

Provocation According to s31(1) of the Crimes Act 1900 (NSW), if an act or omission, which causing death, was done under provocation – jury shall acquit the accused for murder and find the accused guilty of manslaughter. An act that is done or omitted under provocation according to s23(2) of the Crimes Act is where 

The act is a result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased towards or affecting the accused (s23(2)(a))



The conduct was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon the deceased (s23(2)(b)).

Automatism R v Bratty [1963] upheld that no act is punishable if it is done involuntarily, and such involuntarily acts are done without conscious control of the muscles.

Mental Illness The defence of mental illness is identified in R v M’Naughten [1843], which subsequently created what is termed the ‘M’Naughten Rules’. This case rules that the defence of insanity must be proven by showing that at the time of the act, the accused had such a defect of reason, from a disease of the mind, that they did now know what they were doing or that that they did not know what they were doing was wrong.

Intoxication Intoxication is defined in s428A of the Crimes Act as the influence of alcohol, drugs or any other substance. According to s428C of the Crimes Act, evidence that a person was intoxicated at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. However, such evidence will not be used if the person had either resolved before becoming intoxicated to do the relevant conduct, or became intoxicated in order to strengthen his resolve to do the conduct....