LAW1114 Lecture Notes - Lecture 13: Miscarriage, Cox'S Criminal Cases, Crimes Act 1958
TOPIC&7:HOMICIDE&
!
Murder:'Fault'Elements'
!
(A) INTENTION TO KILL OR CAUSE GRIEVIOUS BODILY
HARM/RECKLESSNESS AS TO DEATH OR GBH
Waller & Williams [4.30]-[4.36]: Malice aforethought (mens rea)
• ‘Malice aforethought’ is the distinguishing feature between manslaughter and murder, and it does not
require spite or premeditation
• Malice aforethought can be found to have existed in the following instances:
(1) where D’s act was accompanied by an intention to kill;
(2) where D’s act was accompanied by an intention to cause grievous bodily harm; that is, serious injury
(3) where D’s act was accompanied by knowledge or belief that death would probably result form it;
(4) in Victoria, but not in New South Wales, where D’s act was accompanied by knowledge or belief that
grievous bodily harm would probably result from it:
(5) where D’s act was one of intentional violence and was:
(a) in Victoria, committed in the course or furtherance of a crime, the necessary elements of which
include violence for which a person upon first conviction may be sentenced to death or to life
imprisonment or to imprisonment for a term of 10 years or more;
(b) in New South Wales, committed in an attempt to commit, or during or immediately after the
commission of, a crime punishable by imprisonment for life or for 25 years; and
(6) in Victoria, where D’s act was one of violence committed in the course of resisting a lawful arrest, or
escaping from lawful custody.
• Types of malice:
o Types (1)-(4): Cases of express malice
Ø Types (3)-(4): Commonly regarded as ‘murder by recklessness’, but this expression should not
be used in jury directing (
La Fontaine v R
)
o Types (5)-(6): Cases of implied or constructive malice
• Reasons for the difference between New South Wales and Victoria in (4):
o New South Wales has the mens rea spelt out in section 18(1)(a) of the
Crimes Act 1900 (NSW
o The provision gives recklessness a more limited operation in relation to murder than is the case in
common law jurisdictions (
R v Solomon
[1980] 1 NSWLR 321)
R v Crabbe
(1985) 58 ALR 417
• Parties:!R!(appellant);!Crabbe!(respondent)
• Jurisdiction:!High!Court!of!Australia
• Material!facts:!
o The respondent drove a road train, consisting of a prime mover, through a wall and into a motel bar,
after physically ejected from the bar for causing nuisance and annoyance!
o The incident killed 5 people and caused many to be injured!
o The respondent did not assist injured and simply left, but he was apprehended the next day!
o The defendant had his guilty conviction quashed from the decision of the Full Court of the Federal
Court!
• Legal issue: Whether the ‘willful blindness’ doctrine should it be interpreted to the jury to encompass a
foresight of the possibility of death or serious injury !
• Held (findings):!The!‘wilful!blindness’!doctrine!should!have!been!interpreted!to!the!jury!to!state!that!
the!respondent!must!posses!a!foresight!of!the!probability!that!death!and!serious!injury!may!occur!
from!his!act!
Document Summary
Murder: fault elements (a) intention to kill or cause grievious bodily. W a lle r & w illia m s [ 4 . 3 7 ] : g r ie v o u s b o d ily h a r m. Intention to cause grievous bodily harm": in the law of murder to cause bodily injury of a really serious kind (director of public prosecutions v smith [1961] ac 290) Intention": may be inferred from the range of injuries inflicted on the victim, and their circumstances (meyers v r (1997) 147 alr 440) Grievous bodily harm": includes inflicting a grievous bodily disease (crimes act 1900 (nsw), s 4) W a lle r & w illia m s [ 4 . 4 1 ] : n o te s a n d q u e s tio n s ( 6 )
