In this case, 18year old XXX, the defendant (D) has been charged under s18 of the Crimes Act with the murder of YYY, the victim (V). The burden of proof (BOP) lies with the prosecution (P) to prove the offence beyond reasonable doubt (BRD). Section 18 (1) (a) of the Crimes Act 1900 (NSW) establishes that where the act or an omission of the accused caused the death of the victim and that such act or omission was done with: 1. The intent to kill or;
2. The intent to cause grievous bodily harm (GBH) or;
3. Reckless indifference to human life or;
4. Done in an attempt to commit, during or immediately after committing , either by the accused or some accomplice, a crime punishable by imprisonment for life or for 25 years (known as constructive murder); the accused shall be guilty of the offence of murder. The four categories set out above define the four ‘heads’ of murder. Actus Reus (AR) – the relevant act or omission.
The P must establish that there was a deliberate act or omission of the D that caused the death of the V. The act must be voluntary and must cause the death of the V. Death is defined by statute. The commission of the act must coincide with the mens rea (MR) for the offence: Meyers. The D deliberately threw a punch at the V. Case law has defined voluntariness in terms of a minimum mental control over bodily movement. It would be difficult for the D to raise the issue of voluntariness. Voluntariness is a legal presumption and if raised by the D, the BOP shifts to the D to prove that his acts were not voluntary, that he did not have minimum mental control over his arm when throwing a punch at the V’s face. The issue most likely to be raised by the D with regard to the death of V is the causation factor, in this case, that the punch thrown by the D, struck the V in the face, causing him to fall down and hit his head on the footpath resulting in a number of fractures to the skull that caused the death of the V. Causation is determined by applying an objective test to the actions or conduct of the D that resulted in the death of the V. There have been four tests used by judges to determine causation however, the most favoured and least problematic of these is the substantial or significant cause test, that the conduct of the D must be the substantial or significant cause or operating factor but not necessarily the only cause, of the death of the V: Smith 453, Hallett 496. Whilst the D would be unlikely to argue that his punch caused the V to fall to the ground and strike his head, the D may argue that this was not the substantial or operating factor in the death of the V. Together with a number of fresh fractures that were the result of the V hitting his head on the footpath, the pathologist found evidence of a previous fracture to the skull and a subdural haemorrhage. It has been held that where a V has an injury or condition that predisposes them to a greater risk of death, it is not open to the D to argue that this predisposition caused the death of the V. This means that, despite evidence of previous injury which may have made the V more vulnerable to death, the injury received when the V’s head hit the footpath is still considered to be the injury that caused his death. In the case of constructive murder, there must be a base offence that carries with it a penalty of 25 years or life committed with the relevant temporality and death of the V was the result. The base offence itself does not need to be the cause of death: Munro. The prosecution in this matter would not be able to prove a case of constructive murder as there is an absence of a base offence that carries with it the required penalty is 25 years or life imprisonment. 1 & 2: Mens Rea (MR) Intent to Kill and Intent to Commit GBH. MR refers to the guilty mind of the D at the time they committed the offence charged. There is a presumption in criminal law that the MR of the D must be proven: He Kaw Te. The crimes act contains an...
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