CRIMINALLecture3.ppt

1、CRIMINAL LAW A- 072,MURDER/MANSLAUGHTER LECTURE 3,MURDER,s302 Definition of Murder,The s302 definition of murder sets out five circumstances that constitute this offence but only three of real relevance: Any person who kills another intending to kill them; or Any person who kills another when intend

2、ing to do grievous bodily harm; or Any person who kills another “by means of an act done in the prosecution of an unlawful purpose”,Intending to kill,S302(1)(a) “a person who unlawfully kills anotherthat is to say (a) If the offender intends to cause the death of the person killed or that of some ot

3、her person Section 302(2) says “Under subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed”,Intending to do GBH,S302(1)(a) “a person who unlawfully kills anotherthat is to say (a) if the offender intends to do the person killed or some other

4、 person grievous bodily harm Section 302(2) says “Under subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed”,Unlawful purpose,S302(1)(b) “a person who unlawfully kills anotherthat is to say (b) if death is caused by means of an act done in

5、the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;”,s302(1)(a) Intention to Murder,The elements of s302(1)(a) are; A person unlawfully kills another; that is to say intends to kill or do GBH to a person or some other person How is intention

6、to kill proved?,How is intention proved?,Intention can be proved by either confessional evidence or circumstantial evidence. Courts/juries look at the circumstantial evidence of behaviour of the person and then decide based on their behaviour what that person intended.,R v Winner (1995) 79 A Crim R

7、528,“Because it is impossible for any court, judge or jury, to actually enter the mind of an accused person and search for his or her intent at the critical time, it is inescapable that the forensic process by which intent is judged (when it is denied) will address the objective facts from which an

8、inference of intention may be derived. This is why it is often said that a persons acts may provide the most convincing evidence of intention.” Kirby ACJ,The Test for Intention,The test for determining intention based on a persons behaviour is: Objectively what would be in the mind of an ordinary pe

9、rson who did what the accused did Ask was there any reason why the accused state of mind might be different form the ordinary person.,What is Intention?,No definition in the Code The common law “fills in the gaps” The common law identified two types of intention: direct intention; and knowledge inte

10、ntion.,Direct Intention,“No doubt, when a person intends to do something, ordinarily he or she acts in order to bring about the occurrence of that thing. For example, someone who shoots at another person in order to kill that person may be said to intend to cause death” McHugh J Peters v The Queen (

11、1998) 192 CLR 49,Knowledge Intention,“If a person does something that is virtually certain to result in another event occurring and knows that that other event is certain or virtually certain to occur, for legal purposes at least he or she intends it to occur” McHugh J Peters v The Queen (1998) 192

12、CLR 49,What is a virtual or practical certainty?,The standard of beyond reasonable doubt is a standard of certainty rather than likelihood. This however, means virtual or practical certainty rather than absolute certainty: Goncalves v The Queen (1997) 99 A Crim R 193,Reckless and Knowledge intention

13、,Knowledge intention should be distinguished from recklessness. If a person in reckless they know or understand the likely result but do the act anyway. Similar to knowledge intent which is if a person knows a result of an action is a virtual certainty and that But there are different thing!,Commonw

14、ealth Criminal Code definitions,S5.2 Intention- A person intends conduct if he or she means to engage in it; or a person intends a circumstances if he or she believes that it exists or will exist; OR a person intends a result if he or she means to bring it about or is aware that it will occur in the

15、 ordinary course of events” Recklessness- A person is reckless with respect to a circumstance if he or she is aware of a substantial risk that it does or will exist and it is unjustifiable to take that risk,Examples of Intention,Willmot (No 2) (1985) 18 A Crim R 42 R v Woollin 1999 AC 82,s302(1)(b)

16、Prosecution of an unlawful purpose,The elements of s302(1)(a) are; A person unlawfully kills another; that is to say the death occurs during the; the prosecution of an unlawful purpose; by an act likely to endanger life,Prosecution of an unlawful purpose,The case law says that the “unlawful purpose”

17、 must be different from the act resulting in the death Hughes v R (1951) 84 CLR 170 or R v Gould and Barnes 1960 QdR 283,Likely to endanger life,What does the word likely mean? - “a substantial- a real and not remote chance regardless of whether it is less or more than 50 per cent” Boughey (1986) 16

18、1 CLR 10 see also Hind and Harwood (1995) 80 A Crim R 105,MANSLAUGHTER,s303 Manslaughter,There are two different types of manslaughter: Where the elements of murder are satisfied but defence of provocation or diminished responsibility apply Where all of the elements for murder are not present (Commo

19、n Type of Manslaughter).,Common type of manslaughter,Can itself be broken down into two types: Where a person causes the death of another while pursuing a course of intentional violence but does not intent to use lethal force. This type of manslaughter gives rise to the defence of accident (s23(1)(b

20、) first para second limb). Death is caused to the other person through negligence. This relies on first establishing one of the duties in the Code.,Manslaughter and the person is held to have caused any consequences which result to the life or health of the other person by reason of any omission to

21、perform that duty.,s286 Duty of person who has care of child,(1) It is the duty of every person who has care of a child under 16 years to- (a) provide the necessaries of life for the child; and (b) take the precautions that are reasonable in all the circumstances to avoid danger to the childs life,

22、health or safety; and (c) take the action that is reasonable in all the circumstances to remove the child from any such danger; and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is hel

23、pless or not. (2) In this section- person who has care of a child includes a parent, foster parent, step parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child.,s288 Duty of persons doing dangerous acts,It is the duty of every person who, ex

24、cept in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused an

25、y consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.,s290 Duty to do certain acts,When a person undertakes to do any act the omission to do which is or may be dangerous to human life or health, it is the persons duty to do that ac

26、t: and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.,s289 Duty of persons in charge of dangerous things,It is the duty of every person who has in the persons charge or under the persons control anyt

27、hing, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.,s289 Duty of persons in charge of dangerous things (cont.),This is the most commonly invoked for manslaughter cases. What constitutes