Melbourne University Law Students Society

1
Melbourne University Law Students
Society Student Tutorial Service Criminal Law
and Procedure 730-368 Freya Dinshaw
Sponsoring Partners Clayton Utz Mallesons
Stephen Jaques Leo Cussen Institute
2
DISCLAIMER These tutorials and the notes are
designed to assist students in their learning.
The tutorials and the notes are not a substitute
for the course material, nor should they be
relied upon as representative of the subject
matter of the course. Neither the Melbourne
University Law Students Society nor the student
tutor of these tutorials will take responsibility
for any consequences flowing from the use of the
material provided in the tutorials or in the
notes.
3
Tutorials Schedule

• Email f.dinshaw_at_unimelb.edu.au

4
Homicide

• Plan for today
• Actus reus of homicide
• Conduct, Causation and Result
• Murder
• Intentional, reckless and others
• Manslaughter
• Gross negligence, UD act
• Hypothetical

5
Actus Reus of Homicide

• Preliminaries (Results)
• Death
• Section 41 of Human Tissue Act 1982
• (a) irreversible cessation of circulation of
  blood in the body of the person OR
• (b) irreversible cessation of all function of the
  brain of the person
• Can only occur after life
• S 10 Crimes Act implies life begins when a human
  has an existence independent of its mother.
• Place of trial Victoria where death or cause of
  death happens in Victoria (s 9)

6
Actus Reus of Homicide

• Preliminaries (Capacity)
• Age of accused (RG 20)
• Incapable of committing a crime if below age 10
• If A is between ages 10-14, presumed incapable.
  Prosecution must prove that A knew that their act
  was wrong
• Sanity of accused
• Statutory defence of mental impairment
• Crimes (Mental Impairment and Fitness to be
  Tried) Act 1997(Vic) s 20 (2) (defination of
  defence in s 20(1))
• Contentious what is the scope of the defence?

7
Actus Reus of Homicide

• Need conduct causing death
• Conduct
• Identify the relevant act.
• Was the act voluntary?
• R v Butcher, 1986, VSC, p 376.
• in a charge of murder the act which causes death
  must be proved to have been willed, even though
  its consequences may not have been intended
  (Murphy, Murray and Gobbo JJ)
• Voluntary act here was presentation of knife near
  stomach of deceased
• R v Ryan, 1967, HCA, p 289.
• An accused is not guilty of a crime if the deed
  which would constitute it was not done in
  exercise of his will to act.. (Barwick CJ)
• Voluntary act here was presentation of gun
  towards the back of the deceased
• Intoxication? See OConnor
• Automatism, dissociative states or insanity?
• Falconer v R

8
Actus Reus of Homicide

• Conduct
• Omission?
• Duty of care to act? (Taktak, People v
  Beardsley)
• Where statute imposes a duty to care
• Status relationship
• Assumption of a contractual duty to care
• Where one has voluntarily assumed the care of
  another and so secluded the helpless person as to
  prevent others from rendering aid
• Usually fine for doctors (Medical Treatment Act
  1988 s 9)
• Often involves a finding of negligence gross
  carelessness (Taktak)
• Contemporaniety?
• Actus reus and mens rea must occur at same time
  (Royall)

9
Actus Reus of Homicide

• Causation need Factual and Legal
• Factual causation
• But for test if Ds conduct had not occurred,
  would death have ensued anyway?
• R v Evans Gardiner
• Legal causation
• Did Ds conduct substantially contribute to the
  timing of Vs death?
• Evans, Hallett
• Novus actus interveniens?
• Natural events (Hallett)
• Conduct of third parties (Evans)
• Conduct of victims (Royall)
• Other conduct of D
• ie conduct for which D is not criminally
  responsible. Egs no fault element, omission
  without duty

10
Murder

• Intentional or reckless killing (or infliction of
  grievous bodily harm with death resulting) or
  another human being
• Level 1 imprisonment (s 3 Crimes Act)
• Four types
• Intentional murder
• Reckless murder
• Statutory felony murder
• S 3A Unintentional killing in the course or
  furtherance of a crime of violence
• Common law constructive murder
• D caused death through an act of violence while
  knowingly resisting, preventing or escaping from
  lawful custody

11
Murder

• Intentional murder
• Must be a willed act involving some element of
  intention, end and purpose (Ryan)
• Intention to inflict really serious injury that
  results in death is included (Ryan, Butcher)
• Reckless murder
• Look to the probability that someone will die in
  actual mind of accused
• Clear in Crabbe, discussion in Faure
• Boughey does doing an activity many times
  reduce/increase probability of someone dying?
• Jury direction probability is something more
  than 50
• Wilful blindness not formally part of law but
  can infer actual knowledge (Crabbe)

12
Manslaughter

• Level 3 imprisonment (s 5 Crimes Act)
• Objective mens rea, but must look at act from
  mind of D (Lamb)
• Two types
• Gross negligence
• A gross falling short of the standard of care of
  a reasonable person (Nydam)
• Require a high risk of really serious injury or
  death
• Unlawful and dangerous act
• Unlawful a breach of the criminal law (must
  prove actus reus and mens rea)
• Dangerous involves a reasonable person
  appreciating a risk of serious injury (Wilson)

13
Hypothetical

• On the evening of 5 August 1994,at Wiluna,
  Victoria, a disturbance occurred in a bar at the
  Wiluna Hotel. The police were called at two
  officers arrived in a police van. The placed
  four people in the van and returned to the hotel.
  On returning to the van, they saw Cutter undoing
  the latch on the back of the van door and some
  occupants jumping out. Cutter was asked why he
  did this, and he replied Just leave me alone.
  He repeated this, using coarser language. He was
  placed under arrest and then placed forcibly in
  the van by the officers. They drove to the
  police station with at least three of the people
  originally in the van, as well as Cutter.
• On arrival, the others were taken into the police
  station and Cutter was left in the van with the
  door latched. Cutter was very agitated, according
  to one of the officers, and he had attempted to
  wedge himself into the van by pressing his back
  against the grill nearest the drivers seat and
  pressing one foot against the rear grill.
  Constable K, who was at the police station, went
  out to the van assist in bringing in Cutter.
  Cutter was abusive and told the officers to leave
  him alone. Each constable tried to grab a leg of
  Cutter. In doing so, Constable K leaned into the
  vehicle. At the time Cutter was kicking with his
  free leg.
• When Constable K leaned into the vehicle, Cutter
  lunged forward and the constable was struck on
  the bottom of the throat where it meets the
  middle of the top of the chest. The two
  constables then managed to forcibly remove Cutter
  by dragging him by the legs. Cutter ended up on
  the ground and it was there seen that he had a
  knife in his hand. He was disarmed. The knife
  was large with a 950mm blade. Cutter was most
  aggressive whilst the officers were trying to
  remove him, and was thrashing around and kicking.
  It was only after he noticed a great deal of
  blood that Constable Kirwan realised that he had
  been stabbed in the throat. Twenty minutes
  later, he died. The other officers did not seek
  medical help during this time as they were still
  containing Cutter.

14
Hypothetical Actus reus

• Result death (s 41 HTA), jurisdiction Vic (s 9
  CA), no evidence that sanity an issue
• Act was voluntary and willed (Ryan)
• Act was thrusting the knife into Constable Ks
  throat
• Causation
• Factual K wouldnt have died if not for the
  knife
• However was omission of not seeking medical help
  a novus actus interveniens? Probably not
• Legal Conduct substantially contributed to
  timing (Evans), not contentious
• Temporal coincidence present

15
Hypothetical Mens Rea

• Murder? (liable to level 1 imprisonment)
• Intentional?
• Purpose not necessarily to kill intent was on
  making cops leave Cutter alone. Intent to cause
  serious bodily injury? Possibility.
• Reckless?
• Probability in Cutters mind that K would die?
  Problem is C was not thinking in terms of
  probability did not care about result. Knew of
  possibility.
• Statutory murder s 3A. Yes, relevant offence
  assault.

16
Hypothetical Mens Rea

• Common law constructive murder?
• Yes knowingly was resisting lawful custody.
  Act of violence knife thrusting, death result.
• Manslaughter? (Level 3 imprisonment)
• Gross negligence?
• Reasonable person would perceive high risk of
  really serious injury or death (Nydam) yes!
  Gross falling short of standard of care?
  Questionable
• UD act?
• Unlawful assault causing serious bodily injury.
  Yes.
• Dangerous appreciable risk of serious injury
  (Wilson)? Yes.