LAW161 assignment PDF

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The assignment was asking for all arguable bases for liability regarding punishable homicide. ...

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LAW161

Penelope Elliott

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I QUESTION 1 Hypothetically speaking: Could the Crown prove in the Court of Criminal Appeal that the act that Bazza committed was an act causing the death of the victim after he was charged and convicted of murder or could there have been a novus actus interveniens to break causation. The applicant submitted that the trial judge erred in his directions on causation. In order to commit punishable homicide, there must be a voluntary act or omission of the accused that causes the death of the deceased as set out clearly in section 18 of the Crimes Act 1900.i Arguably; the question of liability as to whether Bazza caused the death of Julie is a matter for the jury in their application of common sense in establishing causation. Swan v Queen1 should be applied when determining substantial cause within the state jurisdiction of New South Whales and its applicability to section 18, whether there is a possibility of a novus actus interveniens that would negate causation. Consider ‘Royall v The Queen’2 in its trial judgement through its application of a causation test. In establishing causation, the jury would be directed by the trial judges that they needed to be satisfied beyond reasonable doubt that the assault that took 1 2

Swan v R [2018] NSWCCA 260. Royall v The Queen (1991) 172 CLR 378.

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place in March 2019 was a significant or substantial cause of Julie’s death. The causation test preferred and accepted Swan v R [2018] NSWCCA 260, formulation generally accepted by the common law substantial cause test seen in Royall v The Queen (1991) 172 CLR 378 at 411. The novus actus interveniens doctrine applied through Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1.3 The premise that an intervening event could be a cause of the death does not necessarily mean that the original assault by the appellant did not remain a significant or substantial cause to the victim’s death.

The second issue raised, could the Crown prove in the CCA that the accused was not acting in reasonable self-defence. The applicant felt it was unjust of the trial judge to remove selfdefence from the jury's consideration if his or her judgment of the facts is that it is not capable of giving rise to the objective requirement of the defence, despite the accused's belief that his actions were justified. Under s 421 of the Crimes Act where a person is charged or convicted with the offence of murder, and jury believes the accused was acting in self-defence; satisfied beyond reasonable doubt, the jury is to find the accused not

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Ibid [97]. 2

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guilty of murder but manslaughter. Apply the common law leading case on self-defence: Zecevic v DPP (Vic) (1987) 162 CLR. Apply the subjective/ Objective tests which were applied in R v Dziduch (1990). The Crown eliminates any reasonable possibility that the accused was acting in self-defence. The direction to the jury is that it is the Crown's onus of proving that the accused did not act in self-defence.4 The Zecevic test should be applied to Bazza’s conduct during the physical assault that took place after the deceased had thrown a glass ashtray at him, causing a substantial wound. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.5

When applying the subjective/ objective test from Dziduch, the trial judge would inform the jury two questions regarding the accused behaviour: …. "whether the accused believed on reasonable grounds that it was necessary to act in self-defence". He then said, if the answer to that

4 5

www.publicdefenders.nsw.gov.au. Viro v The Queen (1978) 141 CLR 88, 158. 3

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question was "yes", there was a second question which they had to answer before the accused could be acquitted, which was "whether it was necessary for him to do what he did in self-defence".6

After the application of the Dziduch test, the jury would most emphatically answer 'No' to the first question and the conviction of murder upheld in the CCA.

It would be

appropriate for Bazza’s legal defence team to pursue a more valid partial defence to lessen the conviction to voluntary manslaughter.

The third issue, did the accused act with the intent to kill or inflict grievous bodily harm. Where there is an intention to kill or inflict GBH on some person, it does not matter that some other person is killed other than the person intended (R v Supple (1870) 1 VR 151). The definition does not require that there be intent to kill or inflict harm upon the person actually killed (Royall v R). Where the Crown relies on the accused intention from foresight of result and desire to achieve a result either to kill or cause grievously bodily harm, the Crown must prove that the accused had the necessary intention. Apply R v Stokes and Difford (1990) 51 A Crim R 25, consider R v Stapleton (1952) 86 CLR 358). At common law, GBH means bodily injury of a

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R v Dziduch (1990) 47 A Crim R 378, 382 (Hunt J). 4

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very serious kind (R v Sergi [1974] VR 1). This case infers while a jury may be invited to draw an inference from the accused’s own actions that they were done with the requisite intention, the direction should not cause the jury to think that the test is an objective one. Applying the standard set out in the rule to establish mens rea by subjective test; Did Bazza foresee the possibility that force might be inflicted.

In cases in which the Crown has to

determine that the act of the accused was with a specific intention, it is normal to direct the jury in the appropriate case that a person's acts may themselves provide the most convincing evidence of his intention. For example, a person deliberately hits another hard on the head with a mallet, it is easy to conclude from that act that he thereby intended to inflict grievous bodily harm upon that other person. Such harm was the result which he sought to achieve by his act. If the argument is put by the Crown (and repeated by the judge) that a person who deliberately does such an act must have intended to inflict such harm, it amounts to no more than an invitation to conclude such an inference or conclusion because it is impossible to imagine from one's experience of life what other result the accused himself could have sought to achieve by that act. It is

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not in any way an invocation of the impermissible presumption as asserted by Stokes in this case.7 It would be assumed in this case, Bazza did not have the intention to cause death. The prosecution would not have proved that the accused intended to cause the death or the injury in a particular way. The idea that death or injury occurred in a way unintended or unexpected by the accused is irrelevant except as to the question of causation as seen in Royall v R (1991).

The next issue, was there evidence of a mental disorder of the accused that might be relevant to questioning the mental element for the crime of murder. 23A(1)(a) of the Crimes Act provides a partial defence to murder of substantial impairment by abnormality of mind.

Apply R v Toki [2003]

NSWCCA, and R v Gosling [2002] NSWCCA 351. Section 23A of the Crimes Act, Levin J: You consider that defence only once you come to the view that the Crown has proved beyond reasonable doubt that the accused did murder the deceased, and that he did so with one of the states of mind necessary for the charge of murder.8

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Stokes & Difford (1990) 51 A Crim R 25, [30]. Regina v Toki [2003] NSWCCA 125, [13]. 6

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However, if the jury were satisfied that it was, there was also an issue as to whether he had any of the states of mind requisite for murder.

In addition, evidence was called on the question of

substantial impairment within the meaning of s 23A of the Crimes Act, and provocation was left to the jury.9

If the accused has not established the partial defence of substantial impairment by abnormality of mind, the appropriate verdict is one of “guilty of murder”. If the accused has established the partial defence of substantial impairment by abnormality of mind, you must find him “not guilty of murder” but “guilty of manslaughter”.

The fifth issue, did the accused act with reckless indifference to life. Could intoxication have been omitted in material facts? Reckless indifference under s18 was held in Royall v R to be the same as reckless indifference at common law, with the exception it must be death and not grievous bodily harm that is foreseen by the accused as a probable consequence of his conduct (R v Solomon [1980] 1 NSWLR 321). Apply the common law case authority of Crabbe v R (1985) 156 CLR 464. 'Probable' means a "real and not remote chance", but the probability does not need to be described in terms of mathematical probability, being more than 50% likely

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Ibid [6]. 7

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(Boughey v R (1986) 161 CLR 10). The High Court held in Crabbe that the notion of willful blindness (foresight of probability + deliberate shutting of the eyes) is useless as an element showing reckless indifference to human life. Murder by reckless indifference to human life is an offence of specific intent. Evidence of self-induced intoxication is relevant to the state of mind of the accused (R v Grant). Under section 18 of the Crimes Act NSW, it is not sufficient under this section that only grievous bodily harm is foreseen by the accused as a probable consequence of his conduct: (R v Solomon [1980] 1 NSWLR 321). An awareness or foresight of death by Bazza is needed if convicted of murder with the fault element of reckless indifference. In a hypothetical situation if Bazza were to appeal a murder conviction it would be unlikely the judge would give direction on recklessness unless there is material to warrant such a direction. Intoxication is relevant to the state of mind of the accused seen in R v Grant.10 There was no mention in the material facts of the case that Bazza had been drinking. If omittance of intoxication in the material facts at the time of conduct it could result in acquittal of murder. It would be unlikely that the Crown could prove the accused acted with reckless indifference.

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R v Grant [2002] NSWCCA 243; 55 NSWLR 80. 8

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It would be assumed Bazza didn’t have the foresight of death at the time of his actions. The prosecution would find it unlikely to prove the accused murdered by reckless indifference to human life as there was no specific intent. The sixth issue, did the accused commit some other punishable offence punishable by life or 25 years. Once the intent to commit the offence, which is punishable by penal for 25 years, is proved there is no need to prove any further act of malice on the part of the accused to prove constructive murder: Mraz v R (No 2).11 There is no need to prove a causal connection between felony and the death or that the death was foreseeable: R v Van Beelen (2016) 125 SASR 253; R v IL [2016] NSWCCA 51. An act only needs to be a substantial and operating cause of death; does not need to be a direct cause Ryan v R [1967] HCA 2; 121 CLR 205. The act causing death must be voluntary. In this case study, particular attention to the words 'during' or 'immediately after' once applying Ryan v R [1967]. The elements of proof based on the physical assault of Julie causing wounding the week before her death as the element of proof of constructive murder. Applying R v IL, the foreseeability of death was not evident in the case study. By applying R v Van Beelen, there is also no need to prove a causal connection

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Mraz v The Queen (No 2) [1956] HCA 54; 96 CLR 62. 9

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between the felony and the death of Julie, or that her death was foreseeable. Applying Ryan v R (1967) 121 CLR 205 the acts committed were voluntary. In this case the Crown would allege the crime committed by accused was a serious offence, and as a matter of law, the crime that took place is punishable by imprisonment of [life or 25 years]. However, if Bazza were to appeal a conviction of constructive murder, the doctrine of joint criminal enterprise would be extended, assuming a partial defence of provocation is applied to lessen the conviction to voluntary manslaughter.

The final issue, was there a reasonable possibility that the accused was provoked? In New South Wales, extreme provocation is a 'partial defence' to a charge of murder. If a person charged with murder were acting in response to extreme provocation, he or she would be found guilty of manslaughter rather than murder (Crimes Act 1900, Section 23(1)). It is a question of law for the judge as to whether there is material in the evidence which sufficiently raises the issue of provocation for the jury's consideration: Lindsay v The Queen (2015) 255 CLR 272 at [16]. The question is whether, on the version of the events most favourable to the accused, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked: Lindsay v The Queen at [26]. The 10

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objective test which would be subject to the CCA’s interpretation for this case study. The conduct of the deceased caused the accused to lose self-control. It is evident there is a connection between the conduct of the deceased and the loss of self-control of accused while taking account the surrounding circumstances and the conduct comprising the serious offence committed by the deceased, outlined in the material facts of the case.ii The accused would be acquitted of a conviction of constructive murder and convicted of the punishable homicide of voluntary manslaughter because of extreme provocation.

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BIBLIOGRAPHY

A Articles/Books/Reports

Fitz-Gibbon, Kate. "Homicide Law Reform in New South Wales: Examining the Merits of the Partial Defence of 'extreme' Provocation." Melbourne University Law Review 40, no. 3 (2017): 769-815 Howie, Roderick, and Paul S. Sattler. Hayes & Eburn Criminal Law and Procedure in New South Wales. 6th ed. 2019 Howie, R. N., and P. Johnson. Annotated Criminal Legislation New South Wales / |c Roderick N Howie, Peter A Johnson. 2018-2019 ed. LexisNexis Annotated Acts. 2018

B Cases

Boughey v R (1986) 161 CLR 10 Crabbe v R (1985) 156 CLR 464 Lindsay v The Queen (2015) 255 CLR 272 Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR Mraz v The Queen (No 2) [1956] HCA 54; 96 CLR 62

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R v Van Beelen (2016) 125 SASR 253 R v IL [2016] NSWCCA 51 Regina v Toki [2003] NSWCCA 125 R v Solomon [1980] 1 NSWLR 321 R v Stapleton (1952) 86 CLR 358 R v Stokes and Difford (1990) 51 A Crim R 25 Royall v The Queen (1991) 172 CLR 378 R v Grant [2002] NSWCCA 243; 55 NSWLR 80 R v Gosling [2002] NSWCCA 351 R v Dziduch (1990) 47 A Crim R 378 R v Supple (1870) 1 VR 151 R v Sergi [1974] VR 1 Ryan v R (1967) 121 CLR 205 Swan v R [2018] NSWCCA 260 Viro v The Queen (1978) 141 CLR 88 Zecevic v DPP (Vic) (1987) 162 CLR

C Legislation Crimes Act 1900 (NSW) (s23A) Substantial impairment by abnormality of mind Crimes Act 1900, Section 23(1) partial defence of extreme provocation, Crimes Act 1900, Section 421- Self-defence--excessive force that inflicts death

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Crimes Act 1900, Section 18 - Murder and manslaughter defined

E Other https://www.judcom.nsw.gov.au/publications/benchbks/crimi nal/provocation.html Intention - Judicial Commission of New South Wales. https://www.judcom.nsw.gov.au/publications/benchbks/crimi nal/intention.html

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Section 18 of the Crimes Act 1900, which deals with murder, reads as follows:

18 Murder and manslaughter defined (1) (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. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. ii

Specifically, the heavy restriction of the partial defence to apply solely in cases where the provocative conduct was a serious indictable offence, as defined in s 4 of the Crimes Act 1990 (NSW), ensures that only behaviour amounting to an indictable offence punishable by imprisonment for at least five years will give rise to the partial defence. This approach has been met with concerns from domestic violence advocates and legal professionals that women who kill in response to prolonged family violence will not be able to meet the requirements of extreme provocation (Fitz-gibbon 2017).

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