LAWS1206 Lecture Notes - Lecture 8: Kerri Ann, Cox'S Criminal Cases, Wilfred Fullagar
Week 5 Monday : Manslaughter
RECAP WEEK 4
S 18 (1)(a):
Murder
Conduct causing death of human being (actus reus)
Issues re causation and human being
Mens rea: intention to kill, GBH, intention(need to go to the common law for
meanings)
Constructive murder: not examinable
Intoxication: every form of murder, is an offence of specific intent for the purpose of
intoxication
Homicide: general term referring to unlawful killing
Murder and manslaughter involves the same actus reus
All cases applicable to manslaughter as well as murder
Mens rea distinguishes the types of homicide
Monday, 20 March 2017
09:04
OVERVIEW
Punishment for manslaughter under the Crimes Act 1900 (NSW): s 24.
Manslaughter defined (?) under s 18(1)(b).
NB the core physical element of manslaughter is the same as for murder –
causing the death of a human being.
Distinction between:
Voluntary manslaughter
Involuntary manslaughter
Categories of involuntary manslaughter:
Unlawful and dangerous act manslaughter (see Wilson v The Queen
(1992) 174 CLR 313); and
Criminal negligence manslaughter (see Nydam v The Queen [1977] VR 430)
Crimes Act 1900 (NSW)
Section 24 Manslaughter-punishment
Whosoever commits the crime of manslaughter shall be liable to
imprisonment for 25 years: Provided that, in any case, if the Judge is of the
opinion that, having regard to all the circumstances, a nominal punishment would
be sufficient, the Judge may discharge the jury from giving any verdict, and such
discharge shall operate as an acquittal.
Whereas murder: max sentencing is life sentence , there is discretion on sentencing
TO BE READ IN CONJUNCTION WITH
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Crimes (Sentencing Procedure) Act 1999
Section 21 General power to reduce penalties
(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.
(2) If by any provision of an Act or statutory rule an offender is made liable to
imprisonment for a specified term, a court may nevertheless impose a sentence of
imprisonment for a lesser term.
(3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a
specified amount, a court may nevertheless impose a fine of a lesser amount.
(4) The power conferred on a court by this section is not limited by any other provision
of this Part.
(5) This section does not limit any discretion that the court has, apart from this section,
in relation to the imposition of penalties.
Why do we distinguish between murder and manslaughter?
One is more culpable than the other
Manslaughter is less culpable
Social stigma between murder and manslaughter
NSW Law Reform Commission Report 82 (1997) - Partial Defences to Murder:
Diminished Responsibility:
“Today, the distinction between murder and manslaughter is seen to reflect
degrees of seriousness of unlawful killings, based on the everyday
understanding that some killings are more blameworthy than others. Liability
for murder is reserved for the most serious or reprehensible killings, whereas
manslaughter applies to unlawful killings which are recognised by the law as
less blameworthy, whether because the offender’s mental state was affected by
some mitigating influence, or because the offender did not intend to kill or
otherwise lacked the requisite guilty mind for murder.” (at parag 2.1)
Crimes Act 1900 (NSW)
S18 (1)(B): tells every other homicide shall be taken as manslaughter
Jury if faced with murder, has the constitutional rights to find manslaughter
instead, the rights of the jury exists even if the judge excludes it
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.
(b) Every other punishable homicide shall be taken to be manslaughter.
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(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.
Voluntary manslaughter: same as murder, the actus reus and mens rea, but there were
mitigating circumstances reducing from what would have otherwise been murder
Voluntary manslaughter : murder in mitigating circmstances
(for example: s 23 - provocation and s 23A - substantial impairment by
abnormality of mind.
See also s 22A - infanticide.
Be alert to s 421 - excessive self-defence.)
and
Involuntary manslaughter
Where mens rea for murder is missing, but there is some other unlawfulness
present
Dealing with voluntary manslaughter
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder
if:
(a) at the time of the acts or omissions causing the death concerned, the person’s
capacity to understand events, or to judge whether the person’s actions were right
or wrong, or to control himself or herself, was substantially impaired by an
abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being
reduced to manslaughter.
(2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so
substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death
concerned, and the intoxication was self-induced intoxication (within the meaning of section
428A), the effects of that self-induced intoxication are to be disregarded for the purpose of
determining whether the person is not liable to be convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of
murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be
convicted of murder is to be convicted of manslaughter instead.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue
of this section does not affect the question of whether any other person is liable to be convicted
of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
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Document Summary
Conduct causing death of human being (actus reus) Mens rea: intention to kill, gbh, intention(need to go to the common law for meanings) Intoxication: every form of murder, is an offence of specific intent for the purpose of intoxication. Homicide: general term referring to unlawful killing. Murder and manslaughter involves the same actus reus. All cases applicable to manslaughter as well as murder. Mens rea distinguishes the types of homicide. Punishment for manslaughter under the crimes act 1900 (nsw): s 24. Nb the core physical element of manslaughter is the same as for murder causing the death of a human being. Unlawful and dangerous act manslaughter (see wilson v the queen (1992) 174 clr 313); and. Criminal negligence manslaughter (see nydam v the queen [1977] vr 430) Whereas murder: max sentencing is life sentence , there is discretion on sentencing. Nsw law reform commission report 82 (1997) - partial defences to murder:
