Homicide

Topics: Criminal law, Causality, Manslaughter Pages: 9 (1961 words) Published: May 4, 2015
Homicide- Murder and Constructive murder

Wallace (1986) Homicide: The Social Reality:
1. Homicide is socially, historically and culturally determined 2. Variety of offenders/victims/social settings
3. Interpersonal in nature, rather than instrumental/ideological 4. Interpersonal killings largely involve intimates
5. Homicide patterns reflect cultural norms
6. Spontaneous rather than premeditated
7. Offenders exhibit a wide range of moral culpability

Primarily committed by males 84% in 2006-7
Partial defence- provocation reduces murder to manslaughter

Crimes Act 1900 (NSW) s 18 – Murder and manslaughter defined (1)
(a) the act of the accused caused the death was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon an attempt to commit, or during or immediately after the commission by the accused or some accomplice of him or her, punishable by imprisonment for life or 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. Homicide includes:

Murder
Constructive murder-
Voluntary manslaughter
Involuntary manslaughter- unlawful and dangerous act manslaughter, criminal negligence manslaughter Homicide by omission
Killings with lawful justification or excuse
Accidental killings

Malice- comprehensive and applies to any legal act that is committed intentionally without Just Cause or excuse Coleman case- death caused by an act done in an attempt to commit or immediately after the commission of a crime- rejected in Munro S4 Crimes Act 1900- grievous bodily harm:

(a) The destruction (other than in the course of a medical procedure)if the foetus of a pregnant woman, whether or not the woman suffers any other harm

Crabbe and Royal- deal with the mens rea for murder
Wilson and Lavender- deal with the definition of unlawful act manslaughter and manslaughter by criminal negligence Causation- law of homicide demands that a consequence-death be caused by the accused, if the accused fails to cause death they must be acquitted of both murder and manslaughter Most can be charged with is an attempt – must prove there is an intent to kill Murder- mens rea is accused intended to cause grievous bodily harm or was recklessly indifferent to human life If not charged with attempt it will be an assault or aggravated assault Murder and involuntary manslaughter

Prove a degree of actual awareness by the accused of certain consequences which could result in their actions as murder Consequences of a reasonable person
Objective tests- manslaughter by criminal negligence and manslaughter by an unlawful and dangerous act Mitigating factors
Provocation
Substantial impairment
Excessive self defence
Infanticide
Murder vs. voluntary manslaughter:
occurs where the conviction results from the operation of one of these mitigating factors or partial defence: provocation
substantial impairment
excessive self-defence
infanticide
Murder vs. involuntary manslaughter:
occurs where the accused did not have the mens rea for murder distinction is drawn in terms of existence of mens rea

Mens rea for murder- wholly subjective test:
1. Intent to kill
2. Intent to cause GBH
s 4
the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman; and any permanent or serious disfiguring of the person; and
any grievous bodily disease (in which case a reference to the infliction of GBH includes a reference to causing a person to contract a grievous bodily disease). 3. Reckless indifference to human life

Intent to cause gbh
A person’s intention may be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused...
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