Criminal

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Murder
Issue: The case’s main points, consent? Intent?

Physical elements:

• s18(1)- definition “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.”

• s18 (2)(b) – no crime as a result of misfortune only

• intoxication?- 428G relevent based on self induce or not, 428A definiton of self induced

• Sane automatism? (Youseff) (sleep walking)

1. Voluntary act (R v Katarzynski, R v Ryan) or culpable omission (R v Taktak, R v Taber; R v Styman)- owed a duty of care, liable for death)

2. causing death (R v Royall, R v Moffatt- take victim as you find them)

3. death

Fault elements:

• s18(1)- look above

1. Intent to kill

2. Reckless indifference to human life. (R v Katarzynski, R v Ryan, R v Crabb- gave definition on reckless.)

3. Intent to cause GBH ( s4- definition, Rv Sergi- ‘includes any permeanent or serious disfiguring of the person’)

4. Constructive Murder. (Foundation crime must be more than 25years) (R v Jacobs and Mehajer)

Punishment for murder (s19A)

• Person who commits murder is liable for imprisonment for life.

Voluntary manslaughter

• Has all physical and fault elements of murder, but a mitigating circumstances reduce the liability to manslaughter.

• Insanity, Provocation, self-defence or excess self-defence, Substantial impairment by abnormailty of the mind.

• Elements: 1) The act (provocation, insanity?)

2) Caused death (Royal)

3) The test involved each act

1. Provocation

• s 23 (1)- act or omission in which it causes the death under the provocation will have their sentence dropped from murder to manslaughter.

• s 18(1)(b)- ‘every other punishable homicide shall be taken to be manslaughter’

• reduces murder to manslaughter

• (R v Dib)-mistake, (R v Lees)- words qualify as provocation, (R v Hall)- 3rd party conduct, (R v Davis)- provocation requires conduct of vision to occur in sight or hearing.

Two part Test:

1. Act/omission of accused was resulted of loss of self-control by decease conducts. S 23 (2)(a) (subjective test) ( connect between victim and loss of self-control

a) Hurtful gesture or insulting words

b) Conduct taken as a whole

c) Relationship between the two. (Chhay)

2. S 23(b)- the decease conduct could have induct any ordinary person to form an intent to kill or cause GBH before act or any pervious time. (Objective test) (Green). Applying objective test person must take into account: not intoxicated and age which is the level of maturity. (R v Sievers)

• The test is not if an ordinary person would have killed the victim, but if the ordinary person can form the intent to kill or cause GBH on the person. (Green)

2) Substantial impairment by abnormality of mind

• A partial defence.

• Only a defence for murder. (reduces murder to manslaughter)

• Falls on the defence to prove on the balance of probabilities. (s23(A)(4))

• Not every mental illness will qualify for the insanity defence – (R v Chayns)

• s23(A)(4)- onus on defence,

• (Porter)- balance of probability

S23(A)(1): 1) abnormality of mind

2) Underlying condition s23(A)(8), (Christov)

3) impairment was so substantial warrant murder to be reduce to manslaughter:

a) capacity to understand event (Christov)...
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