THE MINDS OF MURDER
MURDER
RECKLESS
INDIFFERENCE
INTENT
TO KILL
CONSTRUCTIVE
MURDER
TO INFLICT
GRIEVOUS
BODILY HARM
Section 18 Crimes Act 1900 (NSW)
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.
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(a)
Intent to kill

Hyam v DPP [1974] 2 All ER 41

Hancock & Shankland [1986] 1 AC 455

Nedrick [1986] 3 All ER 1

Demirian [1989] VR 97
(b)
Intent to inflict grievous bodily harm
Section 4 Crimes Act
"Grievous bodily harm" includes:
(a)
the destruction (other than in the course of a medical procedure) of the foetus
of a pregnant woman, whether or not the woman suffers any other harm, and
(b)
any permanent or serious disfiguring of the person, and
(c)
any grievous bodily disease (in which case a reference to the infliction of
grievous bodily harm includes a reference to causing a person to contract a
grievous bodily disease).

DPP v Smith [1961] AC 290

Rhodes (1984) 14 A Crim R 124

Perks (1986) 41 SASR 335
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(c)
Reckless indifference to human life
Recklessness at common law
A person who:
a.
Without lawful justification or excuse;
b.
Does an act;
c.
Knowing that it is probable;
d.
That death or grievous bodily harm will result,
-
Is guilty of murder if death results
-
Possibility but unlikelihood of death or grievous bodily harm is not enough to
constitute recklessness

Pemble (1971) 124 CLR 167

Crabbe (1985) 156 CLR 464

Boughey (1986) 161 CLR 10

Royall (1991) 172 CLR 378
Recklessness in New South Wales
A person who:
a)
Without lawful justification or excuse;
b)
Does an act;
c)
Knowing that it is probable;
d)
That death will result.

Faure [1999] 2 VR 529
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(d)
Constructive murder

Mraz (1955) 93 CLR 493

Ryan (1967) 121 CLR 205

Hitchins & Elliott [1983] 3 NSWLR 318

Jacobs and Mehajer [2004] NSWCCA 462; 151 A Crim R 452
(2)
Actus reus and mens rea: time dimension

Thabo Meli [1954] 1 WLR 228

McConnell [1977] 1 NSWLR 714

Le Brun [1991] 4 All ER 673

Meyers (1997) 147 ALR 440
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THE MINDS OF INVOLUNTARY MANSLAUGHTER
My Lords, of all crimes manslaughter appears to afford the most
difficulties of definition, for it concerns homicide in so many and so
varying conditions. Lord Atkin Andrews v DPP [1937] 2 All ER 552
at 554-555
MANSLAUGHTER
VOLUNTARY
INVOLUNTARY
CRIMINAL
NEGLIGENCE
UNLAWFUL &
DANGEROUS ACT
Unlawful homicides other than murder
1.
Voluntary Manslaughter
2.
Involuntary Manslaughter
Voluntary manslaughter
Actus reus and mens rea of murder with a defence that reduces it to manslaughter
Involuntary manslaughter
a)
Negligent manslaughter
b)
Unlawful and dangerous act manslaughter
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Cases – Criminal Negligence

R v Bateman [1925] 19 Crim App 8

Andrews v DPP [1937] 2 All ER 552

Nydam v R [1977] VR 430
a.
falling short of the standard of care required by the reasonable man in
the circumstances;
b.
and a high degree of risk or likelihood of the occurrence of death or
serious bodily harm if the standard of care was not observed; and
c.
not a consciousness by the accused of the likelihood of his act causing
death or serious bodily harm to the victim or persons placed in a similar
relationship as the victim was to the accused

R v Stone & Dobinson [1977] 2 All ER 341
-
Prosecution can show that act which caused death was done by accused
“consciously and voluntarily without any intention of causing grievous bodily
harm, but in circumstances which involve such a great falling short of a
standard of care which a reasonable man would have exercised. And which
involved such a high risk of death that the act merited criminal punishment.”

Taylor (1983) 9 A Crim R 358

R v Taktak (1988) 14 NSWLR 226

Lavender (2005) 218 ALR 521
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Cases – Unlawful Dangerous & Act doctrine

Franklin (1883) 15 Cox CC 163

Church [1966] 1 QB 59

R v Holzer [1968] VR 481
For unlawful and dangerous act manslaughter to apply, “the circumstances
must be such that a reasonable man in the accused’s position, performing the
very act which the accused performed, would have realised that he was
exposing another or others, to an appreciable risk of really serious injury. It is
not sufficient to show that there was a risk of some harm resulting, it must be
serious harm.”
Elements:
a.
No intention to kill or do grievous bodily harm;
b.
Death of another;
c.
Caused by battery;
d.
Intent to inflict some injury, not merely of a trivial or negligible
character

DPP v Newbury & Jones [1976] 2 All ER 365

Goodfellow (1986) 83 Cr App R 23

Wilson v The Queen (1991) 174 CLR 313 – act must be objectively dangerous
“whether a reasonable person in the accused’s position would have realised
that (in punching the deceased) he was exposing him to an appreciable risk of
serious injury”

R v Pullman (1991) 25 NSWLR 89 – an act is not unlawful merely because it
breaches a statutory prohibition
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
Cornelissen [2004] NSWCCA 449 – reasonable person must be placed in
accused’s position

Burns (2012) 290 ALR 713; 246 CLR 334
Cases - Intentional infliction of harm less than grievous bodily harm

Mamote-Kulang v The Queen (1963) 111 CLR 62

R v Holzer [1968] VR 481

Wilson v The Queen (1991) 174 CLR 313
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