Hayes, Robert & Eburn, Michael, Criminal Law and Procedure in NSW Chesterman, Michael, Criminal Trial Juries in Australia
Crimes Act 1900, NSW
Criminal Procedure Act
Legislative Council Select Committee on the partial defence of provocation – Inquiry into the partial defence of provocation, July 2012
TO: Hilary Undermanager
RE: Advice re liability for unlawful homicide of Montague Portwein
This case is about Hilary Undermanager, a motor mechanic, who caused the death of his colleague, Montague Portwein, with a wrench.
II MURDER OF MONTAGUE PORTWEIN
Murder is defined in s 18(1)(a) of the Crimes Act 1900 (NSW) in the following terms: “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.” Murder has been described as the most serious offence in the criminal calendar: R v Penisini  NSWSC 892 at ; R v Dalley (2002) 132 A Crim R 169 at . It carries a maximum penalty of life imprisonment: s 19A Crimes Act 1900.
Murder, under Section 18(1)(a) of the Crimes Act 1900
Penalty: Imprisonment for life or 25 years
B Physical Elements/ Actus Reus
The act that causes the death of the deceased must be willed or voluntary and that is a fundamental principle. Although Hilary appeared to slip initially and that his hands may have been greasy as the tools in the workshop always were, he was still capable of forming intention and foresight, which are far more complex forms of cognition than those required for voluntariness. It is highly plausible that a person capable of using tools to perform his work (irrespective of the fact that his hands may be greasy) could not be in control of their bodily movements. It is also to be noted that the accused was shaking the wrench at the deceased.
It is to be proven that the act of the accused had a substantial causal effect which operated until the victim died without being interrupted by an intervening cause. Hilary’s acts in throwing the wrench which flew through the air and struck Montague in the middle of the forehead was the substantial causal effect which was operating up until Montague’s death without being sufficiently interrupted by another cause.
C Fault Elements/ Mens Rea
Murder requires one to have the intention to kill or do grievous bodily harm, or recklessness about causing death or grievous bodily harm. The High Court has defined recklessness in murder as the accused knowing that death or grievous bodily harm is a probable result of their action. The test applied here is a subjective one. The Courts have however not been able to give a precise definition of intention, however “probable” means “a substantial or real chance”, “a good chance” or likelihood that death or grievous bodily harm will result. Even though Hilary’s actions are the cause of the victim’s death, the jury can only find him guilty of murder if he had the relevant mens rea at the time of the attack taking place. Based on Duncan Speedy’s statement and that of the accused given to the police, there does not seem to be the intention to kill or cause grievous bodily harm when the act occurred.
The physical and fault elements of the offence must be present at the same point in time in order to constitute an offence. “An accused person who...