UTS: FACULTY OF LAW
Criminal Law: 70218
Autumn Semester: Assignment
Johanan Ottensooser: 10873305
4/12/2010
Word Count:1976
John worked at a tattoo and piercing parlour in the city. Sarah had come to get a piercing, but when
John had started working she fainted, fell off the chair, knocking herself unconscious and bleeding.
John tried to help the unconscious Sarah by pressing cloth against her head, and loosening her
clothes.
Sarah had arranged for her friend Laura to come and pick her up after the piercing. Laura arrived and
saw John leaning over an unconscious, bleeding, semi-clothed Sarah. Laura believed that John had
raped Sarah. Laura was furious, her fury heightened by her belief that her sister had been raped. It
had never been confirmed, however, that her sister had been raped. Although tiny, Laura was an
expert kickboxer and she kicked John repeatedly. As a consequence, John became unconscious.
Laura then grabbed the tattoo gun and roughly tattooed ‘RAPIST’ on his forehead. She then pulled
Sarah out of the shop and took her home.
John later regained consciousness and went home. He did not see the tattoo until the next day and
then was so ashamed that he would not leave the house. The injuries from his beating gradually
healed, but his tattoo became infected. He died as a consequence of the infection from the tattoo. It
was clear that if he had sought medical treatment he would not have died.
Laura was charged with murder. Discuss Laura’s criminal responsibility.
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1 INTRODUCTION
Laura could be charged with murder under s18(1)a of the Crimes Act 1900 (NSW) (“the act”).1 The
prosecution must prove all charges beyond reasonable doubt.2 The defences of provocation and
substantial impairment may be raised.3 If mens rea cannot be proved, the prosecution may rely on
manslaughter by means of criminal negligence or unlawful and dangerous act. 4
1.1 Of sound age
If the defendant is below the age of 14 there is null or limited criminal liability. 5 It will be assumed
that the defendant is of age.
2 ACTUS REUS
The “actus reus” of murder are the acts and/or omissions of the defendant.
2.1 Death of a human being
That the victim was alive and did die is not in contention. 6
2.2 Voluntariness
There is a rebuttable presumption of voluntariness.7 There is no evidence that Laura’s actions were
not “conscious” or “willed”, and the product of choice as required: voluntariness is satisfied.8
2.3 Causation
There must be a causal chain from the actus reus to the death of the victim.9 In the case given; tests
are required to extract legal causation. The relevant act was Laura “tatoo[ing] ... “RAPIST” on
[John’s] forehead.”
1
Crimes Act 1900 (NSW) s18(1)a.
Woolmington v Director of Public Prosecutions [1935] AC 462, p 480.
3
Crimes Act 1900 (NSW) s23, 23A.
4
Wilson v R (1992) 61 A Crim R 63; Crimes Act 1900 (NSW) s18(1)b.
5
R (a child) v Whitty (1993) 66 A Crim R 462; Children (Criminal Proceedings) Act 1987 (NSW) s5.
6
Crimes Act 1900 (NSW) s20; Human Tissues Act 1983 (NSW) s33.
7
Falconer v R (1990) 171 CLR 30.
8
Ibid.
2
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The “but for” test is satisfied in the case: had Laura not tattooed John, he would have not died.
Factual causation is established. This test is insufficient to prove legal causation.10
The commonsense approach is not to be used in complex cases.11 The “natural consequence test”
deals with injuries to the victim in escaping, and is inapplicable.12
The applicability of the “reasonable foreseeability test” has been tempered by conflicts with the
common law rule of “taking your victim as they come”; its confusing nature; and its requirement for
reasonable action from victims.13 The evidence does not suggest that death was reasonably
foreseeable.
The “operating and substantial cause test” requires that “at the time of death the original wound is
still an operating cause and a substantial cause [of death]”, and that it is greater than “merely part of
the [medical] history” or “de minimis”. 14 John died of an infection of the injury caused by Laura.
This is well within the threshold established in Holland15, Evans & Gardiner [No 2] and upheld
Royall16.
Given that the operating and substantial cause test has more authority behind it than the reasonable
foreseeability test, and is satisfied: it is likely that the jury will find causation satisfied.
2.4 Novus Actus Interveniens
Had John seen a doctor, it is clear that he would not have died. This is rejected as a novus actus:
“the fact that the victim refused to stop his end coming about did not break the causal connection
between the act and death.” 17
9
Crimes Act 1900 (NSW) s18(1)a.
Royall v R (1991) 172 CLR 378, pp440, 441.
11
Ibid. p 411.
12
Ibid. p389, 390.
13
Blaue v R [1975] 3 All ER 446; R v Holland (1841) 174 ER 313; Royall v R (1991) 172 CLR 378, p 425.
14
R v Hennigan [1971] 3 All ER 133, [145]; R v Smith (1982) 7 A Crim R 437, [144]; Royall v R (1991) 172 CLR
378, p 411.
15
“It [makes] no difference whether the wound was in its own nature instantly mortal, or whether it became
the cause of death by reason of the deceased not having adopted the best mode of treatment” R v Holland
(1841) 174 ER 313, p 315.
16
R v Evans (No 2) [1976] VR 523; Royall v R (1991) 172 CLR 378.
17
Blaue v R [1975] 3 All ER 446, p 274; R v Bingapore 11 SASR 469; R v Holland (1841) 174 ER 313, p 315.
10
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The causal link seems complex, and may be left for the jury to decide.18 However, there is a strong
causal link between Laura’s act and John’s subsequent death.
2.5 Omissions
For an omission to be held at law as murder there is a requirement for a legal duty to have acted, a
breach of this duty and concurrent mens rea.19
By creating danger, the defendant becomes bound by a legal duty.20 By knocking John out and
tattooing him, Laura’s legal duty is established. In not calling an ambulance, this duty is breached.
In Taber, the victim was immobilised; in this case the victim was not. As such, this link is tenuous.
The mens rea requirement is discussed below.21 Laura’s omission may develop into criminal liability.
The prosecution will, more probably, pursue the three events (the kicking, the tattooing and the
failure to seek medical attention) as a single criminal transaction, as allowed for in Taber. 22
3 MENS REA
“Mens rea” is the intention in an act, the mental element: The prosecution shoulders all
responsibility to establish mens rea; the defence need not prove that an act was accidental.23
3.1 Malice
S18(2)a of the Act requires malice to charge for murder.24 If the mens rea for murder or constructive
murder with a violent base crime is satisfied, the requirement for malice is also satisfied.25
18
Royall v R (1991) 172 CLR 378, p 411.
Conde v R (1867) 10 Cox CC 547.
20
R v Taber (2002) 56 NSWLR 443.
21
See §3, below.
22
R v Taber (2002) 56 NSWLR 443, [20].
23
The King v Mullen (1938) 59 CLR 124, p 126.
24
Crimes Act 1900 (NSW) s18(2)a.
25
Mraz v The Queen (1955) 93 CLR 493, p 497, 498.
19
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3.2 Constructive murder
Constructive murder takes place if death occurs during or after the transaction of a crime with a
punishment greater than 25 years.26 The mens rea required is that of the base crime, not that of
murder.27
In this case, the potential crimes are “wounding or GBH with intent” and “assault occasioning actual
bodily harm.”28 Because of their maximum penalties, the second is irrelevant. Further, since
constructive murder is used to reduce the mens rea requirement for murder, it is irrelevant to this
case, since the requisite intention to GBH for wounding with intent is the same as that of murder.
The prosecution would thus not be assisted by pursuing constructive murder in this case.
3.3 Intention to kill
Intention to kill is tested subjectively, and cannot be assumed.29 There is not enough evidence here
to suggest an intention to kill – Laura’s actions suggest the opposite: she intended John to live with
the disfigurement. It is improbable that the jury will find intention to kill is established.
3.4 Intention to GBH
GBH has been defined in the common law as “really serious bodily harm”, though it needs not be
dangerous in actuality. 30 Statute has supplemented this–GBH may include “any permanent or
serious disfiguring of the person.”31
The manner of the offence and motive implies an intention to cause GBH. If the act is taken as Laura
kicking John, with the full knowledge that she is herself a kick-boxer: this constitutes an intention to
inflict GBH, since it is likely that this will result in John being losing consciousness or worse. Further,
motive is established: Laura, sensitive to sexual assault issues, is responding to the belief that Sarah
was raped.
26
Crimes Act 1900 (NSW) s18(1)a.
Mraz v The Queen (1955) 93 CLR 493, p 495.
28
Crimes Act 1900 (NSW) s33, 59.
29
"One cannot assume that one normally intends the consequences of one's act" Smyth v The Queen (1957) 98
CLR 163, p 664.
30
R v Ashman (1858) 1 FF 88; R v Perks (1986) 20 A Crim R 201.
31
Crimes Act 1900 (NSW) s 4 "Grievous bodily harm" includes: (b)(c).
27
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This, however, leaves an issue of temporal coincidence. 32
The act of tattooing was proved causally connected to John’s death.33 It was committed with intent:
the use of a tattoo gun is complex and requires mental calculation. Further, the victim was
unconscious. Thus, if tattooing constitutes GBH, then intent established. Whereas tattooing may or
may not fall within the definition of GBH under common law,34 it is quite clear that it satisfies the
conditions set out by statute in that it is both permanent and seriously disfiguring.
It is likely that a jury will find that there exists an intention to inflict GBH.
3.5 Reckless murder
For recklessness to replace intent in murder there is a legislative requirement for recklessness to
life.35
Laura left John unconscious and injured. By not calling an ambulance there is evidently a reckless
indifference to life. The prosecution must prove beyond reasonable doubt knowledge of probability
of death.36 It is improbable that a jury will find this strict burden fulfilled. Further, since intent to
GBH is likely proven, the prosecution will probably not pursue this.
3.6 Unexpected cause of death
Mens rea does not need to be specific to the manner of death.37 This allows for unexpected causes
of death, as in this case.38
32
See §4, below.
See §2.3: Causation, above.
34
Depending on the definition of really serious
35
R v Solomon [1980] 1 NSWLR 321; Crimes Act 1900 (NSW) s18(1)a.
36
R v Solomon [1980] 1 NSWLR 321; Royall v R (1991) 172 CLR 378, p 395.
37
Royall v R (1991) 172 CLR 378. Also, see §3.3, 3.4, 3.5, above.
38
See §2.3, 2.4, above.
33
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4 TEMPORAL COINCIDENCE
It is necessary that the actus reus and the mens rea coincide.39 If it is taken that the mens rea was
formed when Laura kicked John, then there might be an issue of temporal coincidence, since this act
did not cause John’s death.
This issue may be circumvented dually. There was intention to inflict GBH during Laura’s tattooing of
John, and this action caused his death.40 The three acts may be seen as parts of a single continuing
criminal transaction, where mens rea must only be proven at one point. 41
It is probable that the jury will find that actus reus and mens rea are satisfied and coincide.
5 DEFENCES
There are defences available to Laura.
5.1 Lawful Homicide
A homicide may not necessarily be unlawful. If it is lawful it may be excused.42 However, self
defence and defence of another are beyond the scope of this assignment and the death did not
occur during an arrest or in stopping a crime. This defence thus fails.
5.2 Provocation
Provocation must be raised as an issue in court and not negatived by the prosecution beyond
reasonable doubt.43
39
R v Taber (2002) 56 NSWLR 443, [20].
See §3.4, above.
41
R v Taber (2002) 56 NSWLR 443, [20]. See §3.4, above.
42
R v Duffy [1967] QB 63.
43
R v Van Den Hoek (1986) 161 CLR 158.
40
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5.2.1
The provocative act
The perceived provocative act was rape. That the victim was connected with the provocation
strengthens the defence; that he had no intention to provoke and that he did nothing illegal is
irrelevant.44 There is requirement that provocation is more than mere words.45 In this case, it is not
clear that, with no action by the victim, the act constitutes a legally provocative act.
There is also a requirement that provocation occurs and be observed by the defendant.46 This
complicates things, since Laura did not actually see Sarah being raped, but merely assumed that rape
occurred given the aftermath.
Croft suggests that in the case where provocation is perceived but not actual, provocation holds.47
This is limited to cases that aren’t “entirely imaginary,” even if there are no express acts by the
victim.48 However, this has been subsequently criticised.49 Dibb illustrated that this question is not
yet solved at the common law, and cannot be extrapolated from the act alone. 50
Considering that Croft has been overturned, and that reasonable mistake is only applicable in cases
of self-defence51, it is unlikely that perceived rape constitutes a legally provocative act.52
5.2.2
That an ordinary person in the position of the defendant could have lost self
control as the defendant did
The ordinary person test must be tempered by the individual attributes of the defendant. 53 Given
that Laura’s sister was allegedly raped, she was more sensitive to rape-based provocation. It is not
clear that this belief was founded in truth and would thus alter the reasonable person test in this
instance.
44
R v Gardner (1989) 42 A Crim R 279; Crimes Act 1900 (NSW) s23(2), s23(2)a.
Holmes v Director of Public Prosecutions [1946] AC 588.
46
R v Quartley (1986) 36 A Crim R 1.
47
Croft v R 1 NSWLR 126.
48
Voukelatos v R [1990] VR 1, p 26.
49
R v Dibb (2002) 134 A Crim R 329, [38]-[58].
50
Ibid. [76].
51
Where reasonable mistake would leave the defendant innocent, not with reduced culpability as with
provocation: Ibid. [38]-[40].
52
Croft v R 1 NSWLR 126, p 149; R v Dibb (2002) 134 A Crim R 329, [44]-[48].
53
Green v The Queen (1997) 191 CLR 334, p 335; Masciantonio v R (1995) 183 CLR 58.
45
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The law requires that the ordinary person would lose control “as the defendant did.” It may be
argued that an ordinary person would not have tattooed John whilst he was unconscious.
Masciantonio states that this is irrelevant, and that the only relevant factor is that an ordinary
person (not a reasonable person), could (not would), have formed any intent to kill or cause GBH.54
It is likely that the jury will find that an ordinary person could have lost self control, given the
defendant’s background and her perception of a rape act.
5.2.3
That the defendant lost self control
Laura was “furious” and her fury led to her forming the intent to cause GBH to the victim. This
constitutes a loss of self control.55
5.3 Substantial impairment of mind
The defence must prove substantial impairment of mind on the balance of probabilities.56 This
defence is overcome due to Laura (within the evidence) not suffering from any “underlying condition
that is more than of “a transitory kind.”57
Since the evidence suggests no such condition, it is likely that the jury will find that this defence
would fail.
6 MANSLAUGHTER BY CRIMINAL NEGLIGENCE
If it cannot be held that the mens rea for manslaughter by unlawful and dangerous act is satisfied,
the prosecution may pursue manslaughter by criminal negligence. However, given the strict test
required, “gross criminal negligence”, with a “great risk ... [of] death of GBH”58, it is unlikely that
both legal duty to act and breach of act will be satisfied. Since there is an illegal act, it is much easier
for the prosecution to pursue manslaughter by unlawful and dangerous act.
54
Masciantonio v R (1995) 183 CLR 58, p 69; R v Johnson (1976) 11 ALR 23; Thorpe v R [1999] 1 VR 326, p 16.
Masciantonio v R (1995) 183 CLR 58.
56
Crimes Act 1900 (NSW) s23A(4).
57
Ibid. s23A(1)a.
58
R v Nydam [1977] VR 430, 445.
55
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7 MANSLAUGHTER BY UNLAWFUL AND DANGEROUS ACT
If the jury decides that Laura should not be found guilty of murder for reasons outside of the
defences in §559, Laura may be charged with involuntary manslaughter by unlawful and dangerous
act.60
Forceful tattooing without consent and repeatedly kicking the victim is criminal. 61 Further, they
create an appreciable risk of serious injury. These are both required as per Mason CJ, Toohey,
Gaudron and McHugh JJ’s decision in Wilson.62
Further, the test as described in the dissenting judgement of Brennan, Dean and Dawson JJ states
that the act must be objectively dangerous.63 This test, although unnecessary, is satisfied, since
assault and unskilled tattooing are both inherently dangerous.
It is likely that the elements of manslaughter by unlawful and dangerous act would be considered
satisfied by a jury.
8 CONCLUSION
This case is complex: there are issues in causation, intention and temporal coincidence. The jury
may find Laura guilty of murder. Laura’s defences of lawful homicide and substantial impairment of
mind are both weak. Since apparent but not actual provocation is disallowed in the common law, it
is likely that this defence, too, would be rejected. If murder fails, however, there is still
manslaughter. Whilst a conviction under criminal negligence manslaughter is unlikely, a conviction
under unlawful and dangerous act manslaughter is almost certain.
59
See §5, above.
Wilson v R (1992) 61 A Crim R 63.
61
See §3.2, above.
62
Wilson v R (1992) 61 A Crim R 63.
63
Ibid.
60
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9 BIBLIOGRAPHY
9.1 Cases
Blaue v R [1975] 3 All ER 446.
Conde v R (1867) 10 Cox CC 547.
Croft v R 1 NSWLR 126.
Falconer v R (1990) 171 CLR 30.
Green v The Queen (1997) 191 CLR 334.
Holmes v Director of Public Prosecutions [1946] AC 588.
The King v Mullen (1938) 59 CLR 124.
Masciantonio v R (1995) 183 CLR 58.
Mraz v The Queen (1955) 93 CLR 493.
R (a child) v Whitty (1993) 66 A Crim R 462.
R v Ashman (1858) 1 FF 88.
R v Bingapore 11 SASR 469.
R v Dibb (2002) 134 A Crim R 329.
R v Duffy [1967] QB 63.
R v Evans (No 2) [1976] VR 523.
R v Gardner (1989) 42 A Crim R 279.
R v Hennigan [1971] 3 All ER 133.
R v Holland (1841) 174 ER 313.
R v Johnson (1976) 11 ALR 23.
R v Nydam [1977] VR 430.
R v Perks (1986) 20 A Crim R 201.
R v Quartley (1986) 36 A Crim R 1.
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R v Smith (1982) 7 A Crim R 437.
R v Solomon [1980] 1 NSWLR 321.
R v Taber (2002) 56 NSWLR 443.
R v Van Den Hoek (1986) 161 CLR 158.
Royall v R (1991) 172 CLR 378.
Smyth v The Queen (1957) 98 CLR 163.
Thorpe v R [1999] 1 VR 326.
Voukelatos v R [1990] VR 1.
Wilson v R (1992) 61 A Crim R 63.
Woolmington v Director of Public Prosecutions [1935] AC 462.
9.2 Statutes
Children (Criminal Proceedings) Act 1987 (NSW).
Crimes Act 1900 (NSW).
Human Tissues Act 1983 (NSW).
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