Class Notes (839,068)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)
Lecture

9. [s304A] Mitigating Circumstances for Murder

3 Pages
65 Views

Department
Law
Course Code
JSB171
Professor
All

This preview shows page 1. Sign up to view the full 3 pages of the document.
Description
Diminished Responsibility for Murder: s304A (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is • at the time of doing the act or making the omission which causes death • in such a state of abnormality of mind (whether arising from o a condition of arrested or retarded development of mind or o inherent causes or o induced by disease or injury) • as substantially to impair o the person’s capacity to understand what the person is doing, or o the person’s capacity to control the person’s actions, or o the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only. Onus—Defence—On accused BOP | R to negative BRD: s304A(2) → Cannot be raised by the R → Trial judge only obliged to leave s304A to the jury if it is raised by the defence Effect—Partial Defence—guilty of manslaughter rather than murder (not full acquittal) • Irrelevant that another person is convicted of manslaughter / murder: s304A(3) Procedure— • Cannot be raised by the Crown • Judge has no duty to put to jury if on the evidence unless the accused raises it ↔ s27 • refer to Mental Health Court to determine whether murder or manslaughter: R v Potter (plead guilty to murder—questions of mental state—referred to MHC  not totally deprived but substantially impaired capacity → referred back & plead guilty to manslaughter instead) 1. Abnormality of the mind at the time of the act/omission … at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from • a condition of arrested or retarded development of mind or • inherent causes or • induced by disease or injury) …  Broad test—state of mind ‘so different from that of ordinary human beings that a reasonable man would term it abnormal’: Bryne per Parker LJ; Rolph per Mansfield J (Wider scope than insanity provisions)  Narrow test—outside the normal range of human capacities: Rolph per Hanger J o Must remind jury that normal people vary greatly in  intelligence and disposition  capacity to reason  depth and intensity of their emotion  excitability  capacity to exercise self-restraint Rolph (murder of gf’s father—abnormality from polio & encephalitis | attended special school & started work at 15 with patchy record | almost illiterate | lacked ordinary capacity of reasoning: could not do simple maths, did not know Xmas was in December—but not of unsound mind  better directions should have been given to jury → retrial); adopted in Whitworth per Thomas J Andrew Trotter LWB239 Criminal Responsibility ← Must show abnormality stems from one of prescribed causes in s304A— (Whitworth) o arrested or retarded development of the mind o inherent causes o induced by disease or injury Includes • Severe retardation caused by disease: Rolph (polio & encephalitis | attended special school & started work at 15 with patchy record | almost illiterate | lacked ordinary capacity of reasoning: could not do simple maths, did not know Xmas was in December) • Psycho
More Less
Unlock Document

Only page 1 are available for preview. Some parts have been intentionally blurred.

Unlock Document
You're Reading a Preview

Unlock to view full version

Unlock Document

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit