LAW 2599 Lecture Notes - Lecture 4: Indictable Offence, Criminal Negligence, Lesser Included Offense
23 May 2018
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HOMICIDE OFFENCES
fact- someone has died.
1. Begin by trying to establish murder
a. PE and FE established= life
imprisonment, 20 years non parole
b. If clear the offence is manslaughter-
mention why it isn’t murder and move
on
2. if D successfully argues excessive SD defence
– voluntary manslaughter
3. if elements of murder cannot be made out-
involuntary manslaughter (either unlawful
dangerous act or criminal negligence)
STEP 1: outline offence’s PEs and FEs
1. MURDER
a. s 11 CLCA: any person who commits murder
shall be guilty of an offence and shall be
imprisoned for life (20 years non-parole)
b. Full fault
c. Physical element = causing death of a human
being
d. Fault element = intentionally/ recklessly
causing death or GBH
e. Penalty: life imprisonment with 20 yrs non-
parole
2. CAUSING DEATH BY INTENTIONAL ACT OF
VIOLENCE
a. s 12A CLCA: A person who commits an
intentional act of violence while acting in the
course or furtherance of a major indictable
offence punishable by imprisonment for ten
years or more (other than abortion), and thus
causes the death of another, is guilty of
murder
b. note- if not in the course of a major indictable
offence (assault) voluntary manslaughter
c. No fault
d. Physical elements
i. Intentional act of violence
ii. In course of furtherance of major
indictable offence
iii. Causes death
e. R v butcher 1986: armed robbery
3. MANSLAUGHTER
a. s 13(1) CLCA: any person convicted of
manslaughter shall be liable to imprisonment
for life or to pay such fine as the court awards
or to both such imprisonment and fine
b. physical element: causing death of a human
being
c. fault element depends on whether:
i. voluntary
ii. involuntary
• unlawful and dangerous act
• criminal negligence
iii. alternative verdict to murder
d. penalty: life imprisonment or fine or both
imprisonment and fine- more FAVOURABLE
to D than murder- court has discretion
STEP 2: Accused presumed innocent. Evidential and
legal burden on prosecution to rebut presumption by
proving physical and fault elements beyond reasonable
doubt
STEP 3: PHYSICAL ELEMENT
*analysis of physical element the same for all
homicide offences
1. Death of a human being
a. If clear on facts, state ‘V is a human’ D
caused his/ her death
b. If unclear, start analysis
i. To be a ‘human being’ at law, the
individual must be fully born in a living
state Hutty. This is known as the
beginning of life principle.
• No single legal or medical test of what
constitutes ‘born alive’ (could be a
flicker of an eyelid), changes over
time
ii. To have caused death, the human being’s
life must have ended. This is known as the
end of life principle
• Definition of Death Act 1983 (SA) s 2:
for the purposes of the law of this
State, a person has dies when there has
occurred
(a) irreversible cessation of all
function of the brain of the person, or
• (b) irreversible cessation of circulation
of the blood of the body of the person
• Person in persistent vegetative state
does not come within this definition
2. V’s caused death by D’s…
a. Conduct
i. Act (most common).
• Voluntary: willed/ conscious. Not
reflex, accident, mental impairment, or
state of disassociation Ryan v the
queen; Falconer
ii. Omission (where statutory or common
law duty exists)
iii. State of affairs (possession, unlawful on
premises)
b. Circumstances: external to accused, not
always requires
c. Result: not always required
3. Causation- did Ds conduct cause Vs death?
find more resources at oneclass.com
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a. No legal test to assist jury, sufficient to be
instructed to apply common sense to the facts
as they are found in appreciation that the
purpose of the inquiry is to attribute legal
responsibility in a criminal matter Royal v The
Queen
b. Prevailing test = substantial contribution-
are the actions of the accused a substantive,
continuing, operative cause of the V’s death R
v Hallett (no but for test) (more than fanciful
or remote. Must be real, substantial and
significant)
i. Alternative test = reasonable
foreseeability (don’t use)
• Rejected in Hallett, some support in
Royall, support in R v Dawood. But
less authoritative than substantian
contribution test
• Legal causation requires proof that the
death or injury was a reasonably
foreseeable consequence of Ds
conduct
• Foreseeability of death assessed
objectively, rather than what D
actually foresaw
• Liability of D affected by
reasonableness of reaction of victim
• employs common law ‘eggshell skull’
rule which requires an offender to take
the victim as they find them, where the
victim had a physical or psych
weakness or religious belief which
made then more vulnerable to death
than an ordinary victim would have
been in the circumstances
c. Breaking the chain
i. Free and informed choice of victim
• Royall at 389 ‘where the conduct of
the accused induces in the victim a
well-founded apprehension of
physical harm such as to make it a
natural (or reasonable) consequence
that the victim would seek to escape
and the victim is injured in the course
of escaping, the injury is caused by the
accused’s conduct
Ds actions are a substantial cause
of death. V had no choice but to
jump
• Police observe high speed driver,
police pursues. Police officer looses
control, suffers injury
Police officer made conscious and
free informed decision to pursue
driver. Police officer responsible
for own injuries. Not hoon driver.
Scott v Stanford
ii. Medical treatment
• No break in the chain
R v Blaue: those who use violence
on other people must take their
victims as they find them. If V
refused medical treatment on
basis of their religion, cause of
death remains the would inflicted
by D. no break in chain. No
obligation for V to seek medical
treatment.
D stabbed woman in chest.
Hospital told her she would
die without blood transfusion.
She refused because it was
against her belief as a
jehovah’s witness. Died next
day from wound
R v Smith: liability of D will not
be avoided just because
incompetent medical treatment
was received, and death resulted.
Has to be a very unusual situation
for medical treatment to break
chain.
*fight with bayonets in
barracks, smith stabbed
soldier in arm and back.
Stretcher bearers were
intoxicated, dropped him
twice en route to hospital.
Army hospital missed V’s back
wound, and, untreated, caused
death. Later medical opinion
was that his life would have
been saved by a simple blood
transfusion
• Break in the chain
R v Jordan: ‘palpably wrong’
medical treatment causing death
when the original wound had
nearly healed breaks chain
B taken to hospital for
treatment of a stab wound
inflicted by J. given antibiotic
intravenously which he was
wound to be intolerant, drug
administration ceased.
Following day, doctor ordered
resumption of same antibiotic,
caused Bs death several days
later
iii. Intervening act – novus actus
interveniens
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Voluntary manslaughter if elements of murder cannot be made out- involuntary manslaughter (either unlawful dangerous act or criminal negligence) Evidential and legal burden on prosecution to rebut presumption by proving physical and fault elements beyond reasonable doubt. This is known as the end of life principle: definition of death act 1983 (sa) s 2: for the purposes of the law of this. Queen: prevailing test = substantial contribution- are the actions of the accused a substantive, continuing, operative cause of the v"s death r v hallett (no but for test) (more than fanciful or remote. Must be real, substantial and significant: alternative test = reasonable foreseeability (don"t use, rejected in hallett, some support in. Ds actions are a substantial cause of death. V had no choice but to jump: police observe high speed driver, police pursues. Police officer made conscious and free informed decision to pursue driver. Scott v stanford: medical treatment, no break in the chain.
