Criminal Notes Australia

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- MURDER
* Murder is under the “Fatal offences against a person- causing homicide” in the Crimes Act (s188, punishment (s19A)

Physical Element- Before a person may be convicted of murder the Crown must establish the following elements: 1. An Act or Omission
2. Caused by (causation) HAVE TO ESTABLISH ALL 3. Death charged

Fault Element-
1. Reckless indifference to human life
2. Intent to kill ONLY HAVE TO ESTABLISH ONE 3. Intent to conflict grievous bodily harm
4. While committing a crime that carries life or 25 years (constructive murder)

Murder v Manslaughter- MCCOC –Fatal offences against the person – TB pg 73 “Murder is reserved for what are, morally, the most serious cases of homicide, manslaughter has always been a residual category, and as a consequence remains a notoriously ill-defined offence…. Uncertainty on the question where to draw the line between murder and manslaughter has prompted proposals to abolish the distinction so as to merge murder and manslaughter into a single offence of unlawful homicide…. The proposal has won few adherents.”

CRIMES ACT 1900 - SECT 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. (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.

CRIMES ACT 1900 - SECT 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. PHYSICAL ELEMENT- THE PHYSICAL ELEMENT ACT-

* The act must be voluntary
* s18 (2) (b) -“No punishment or forfeiture shall be incurred by any person who kills another by misfortune only” * R v Ryan- Prosecution must show a clearly identifiable “act” that they claim cause the death charged – e.g. the accused shot, stabbed, smothered or in some way killed the deceased. * R v Katarzynski– see in particular points 26 – 30 at TB page 82-83 – if “there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary… then the accused is not guilty of murder.” * Act has to be voluntary and intended

PHYSICAL ELEMENT OMISSION-
* When can an omission be AR for homicide?...
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