LAWS1206 Lecture Notes - Lecture 4: Well-Founded Relation, Transferred Intent, Nsw Law Reports
Week 4 Lecture 1 – Murder
Relevant sections of the Crimes Act 1900 (NSW) - (including section 18 and section
19A)
Physical Element of Murder (Actus Reus)
1. What is a human being?
oThe beginning of life
oThe end of life
2. What tests are applied to determine whether the accused caused the death of the
victim?
oRoyall v The Queen (1991) 172 CLR 378
Very simple cases? (Campbell v The Queen [1981] WAR 286)
More complex cases? Operating and substantial cause test
Where there is a novus actus interveniens argued?
Natural consequence test
Reasonable foreseeability test
Operating and substantial cause test
Crimes Act 1900 (NSW)
Section 19A Punishment for murder
(1) A person who commits the crime of murder is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for the crime of murder is to serve
that sentence for the term of the person’s natural life.
(3) Nothing in this section affects the operation of section 21(1) of the Crimes
(Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence
than imprisonment for life).
(4) This section applies to murder committed before or after the commencement of
this section.
(5) However, this section does not apply where committal proceedings (or
proceedings by way of ex officio indictment) for the murder were instituted against
the convicted person before the commencement of this section. In such a case, section
19 as in force before that commencement continues to apply.
(6) Nothing in this section affects the prerogative of mercy.
Crimes (Sentencing Procedure) Act 1999
Section 21
(1) If by any provision of an Act an offender is made liable to imprisonment for life, a
court may nevertheless impose a sentence of imprisonment for a specified term.
Section 61
(1) A court is to impose a sentence of imprisonment for life on a person who is
convicted of murder if the court is satisfied that the level of culpability in the
commission of the offence is so extreme that the community interest in retribution,
punishment, community protection and deterrence can only be met through the
imposition of that sentence.
Crimes Act 1900 (NSW)
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Section 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.
o(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.
o(b) No punishment or forfeiture shall be incurred by any person who kills
another by misfortune only.
Elements of the offence
Actus reus elements:
oAn act or omission of the accused (nb everything you have already learned
about voluntariness – ie we are looking for the accused’s voluntary act or
omission)
oCausing the death charged (the death of a human being)
Mens rea elements:
oIntent to kill or
oIntent to inflict grievous bodily harm or
oReckless indifference to human life or
Exceptional category of murder: “felony” or “constructive” murder
oAct or omission causing death is done in an attempt to commit or during or
immediately after the commission of a crime punishable by 25 years or life
imprisonment.
NB Section 17A Crimes Act
(1) The rule of law that it is conclusively presumed that an injury was not the cause
of death of a person if the person died after the expiration of the period of a year and a
day after the date on which the person received the injury is abrogated.
(2) This section does not apply in respect of an injury received before the
commencement of this section.
o[Section 17A inserted into the Crimes Act 1900 in 1990 and operational since
17 March 1991.]
Main issues to consider RE AR of murder:
1. What is a human being?
a. The beginning of life
b. The end of life
2. What tests are applied to determine whether the accused caused the death of the
victim?
a. Royall v The Queen (1991) 172 CLR 378
Actus Reus elements
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1. What is a human being?
a. When does life begin?
a.i. Common Law position: R v Hutty [1953] VR 338 (See textbook p
526)
a.ii. Re child murder: Crimes Act 1900 (NSW), s 20: On the trial of a
person for the murder of a child, such child shall be held to have been
born alive if it has breathed and has been wholly born into the world
whether it has had an independent circulation or not. (See B & McS p
527)
a.iii. Further statutory modification of common law position in NSW: the
definition of grievous bodily harm in s 4 of the Crimes Act 1900
includes: (a) the destruction (other than in the course of a medical
procedure) of the foetus of a pregnant woman, whether or not the
woman suffers any other harm. (See B & McS p 528)
a.iv. Where the prosecution (in NSW) is for manslaughter rather than
murder, what test for when life begins applies? See R v Iby [2005]
NSWCCA 178 (Add Mats)
b. When does life end?
b.i. Human Tissue Act 1983 (NSW), s 33:
b.ii. 33 When death occurs
b.ii.1. For the purposes of the law of New South Wales, a
person has died when there has occurred:
b.ii.2. (a) irreversible cessation of all function of the person's
brain; or
b.ii.3. (b) irreversible cessation of circulation of blood in the
person's body.
b.iii. In what circumstances might it be important to determine precisely
when someone who is on life support has died?
2. What tests are applied to determine whether the accused caused the death of the
victim?
a. Leading case is Royall v The Queen (1991) 172 CLR 378
b. Emerging tests from that case are:
b.i. Natural conseqeucne test
b.ii. Reasonable foreseeability test
b.iii. Operating and substantial cause test
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Relevant sections of the crimes act 1900 (nsw) - (including section 18 and section. Very simple cases? (campbell v the queen [1981] war 286) 19 as in force before that commencement continues to apply. (6) nothing in this section affects the prerogative of mercy. Section 21 (1) if by any provision of an act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. Murder and manslaughter defined (a) murder shall be taken to have been committed where the act of the. Mens rea elements: intent to kill or, intent to inflict grievous bodily harm or, reckless indifference to human life or. Exceptional category of murder: felony or constructive murder: act or omission causing death is done in an attempt to commit or during or immediately after the commission of a crime punishable by 25 years or life imprisonment.
