Homicide

Brief contents
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Crimes Act 1900 (NSW) s 18....................................................................................1

Intent to kill or inflict grievous bodily harm.............................................................1
Reckless indifference to human life..........................................................................2
Constructive manslaughter........................................................................................2
Manslaughter by unlawful & dangerous act..............................................................2
Manslaughter by criminal negligence........................................................................3

1 Crimes Act 1900 (NSW) s 18

18 Murder and manslaughter defined
(1) Murder shall be taken to have been committed where the act of the accused, or thing by
(a) 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.
(2) No act or omission which was not malicious, or for which the accused had lawful cause or
(a) excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by
misfortune only.

2 Intent to kill or inflict grievous bodily harm

2.1 Some person, not the person killed
Royall (1991) 172 CLR 378, 401 (Brennan J):
[I]t is not necessary that the intent relate to the death of the person killed rather than to the
death of some [other] person.

2.2 No need to intend particular method

Royall (1991) 172 CLR 378 at 411 (Deane & Dawson JJ):
If a person creates a situation intended to kill and it does kill it is no answer to a charge of
murder that it caused death at a time or in a way that was to some extent unexpected.

3 Reckless indifference to human life

3.1 Probability, not possibility
Crabbe (1985) 156 CLR 464, 469-470 (The Court):
[A] person who, without lawful justification or excuse does an act knowing that it is probable
that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is
not enough that he does the act knowing that it is possible but not likely that death or grievous
bodily harm might result.

3.2 NSW: Death, not grievous bodily harm

Solomon [1980] 1 NSWLR 321, 337 (Begg J):
[T]he New South Wales section says, with reckless indifference to human life. In my view,
it is not adequate in New South Wales to prove any lesser sort of reckless indifference, such
as indifference to whether the deceased or some other person might have been injured.

4 Constructive manslaughter
4.1 Felony must be voluntarily committed
Ryan (1967) 121 CLR 205, 243 (Windeyer J):
[T]he act which caused the wounding [or any other applicable crime] must be the act of the
accused voluntarily done.

4.2 No causal link needed

Munro (1981) 4 A Crim R 67, 69 (Street CJ):
There is no relevant requirement of a causal link between the felony relied upon as
constituting the homicide one of felony murder and the death[.]

4.3 Death does not need to be foreseeable

Munro (1981) 4 A Crim R 67, 69-70 (Street CJ):
[The defence contended] that it was necessary for the Crown to establish that a reasonable
person in the position of the accused would have foreseen that his acts would cause death and
that the wounding would cause death [T]he propositions advanced are neither consistent
with the clear terms of the statute nor with the meaning which has been placed upon it.

5 Manslaughter by unlawful & dangerous act

5.1 Reasonably appreciable risk of serious injury
Wilson (1992) 174 CLR 313, 325 (Mason CJ, Toohey, Gaudron & McHugh JJ), quoting with
approval Holzer [1968] VR 481, 482 (Smith J):
[T]he circumstances must be such that a reasonable man in the accuseds 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 [I]t is not
sufficient, as it was held in R v Church to show there was a risk of some harm resulting,
albeit not serious harm. (Emphasis added.)

5.2 Serious injury, not really serious injury

Wilson (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron & McHugh JJ):
It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of
serious injury.

5.3 Reasonable person

Relevant:

Irrelevant:

The physical situation1

The accuseds actions2
The accuseds age3

Alcohol or drugs4
The accuseds emotional state5
Anything that affects reasoning & judgment6

5.4 Unlawful acts that are not applicable

Self-defence7
Statutory or regulatory breaches8

1 Wills [1983] 2 VR 201, 212 (Lush J).

2 Wills [1982] 2 VR 201, 212 (Lush J).
3 DPP v Ty [2006] 14 VR 430, 434 (Bell J).
4 Wills [1982] 2 VR 201, 212 (Lush J).
5 Wills [1982] 2 VR 201, 212 (Lush J).
6 Wills [1982] 2 VR 201, 214 (Fullagar J).

Omissions9
Unlawfully supplying drugs10
Administering drugs on others with consent11

6 Manslaughter by criminal negligence

6.1 Reasonably high risk
Nydam [1977] VR 430, 445 (The Court):
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution
shows that the act which caused the death was done by the accused consciously and
voluntarily, without any intention of causing death or grievous bodily harm but in
circumstances which involved such a great falling short of the standard of care which a
reasonable man would have exercised and which involved such a high risk that death or
grievous bodily harm would follow that the doing of the act merited criminal punishment.

6.2 Wickedly negligent

Lavender (2005) 222 CLR 67, 87 (Gleeson CJ, McHugh, Gummow & Hayne JJ):
[T]he prosecution had to persuade the jury beyond reasonable doubt that the conduct of the
respondent was not only unreasonable, but that it was wickedly negligent.

6.3 Honest and reasonable mistake not applicable

Lavender (2005) 222 CLR 67, 87 (Gleeson CJ, McHugh, Gummow & Hayne JJ):
If the jury were satisfied of that [that the accuseds conduct was wickedly negligent], how
could they entertain the possibility that the respondent held an honest and reasonable belief
that it was safe to proceed?

7 Cornelissen [2004] NSWCCA 449; Downs (1985) 3 NSWLR 312.

8 Pullman (1991) 25 NSWLR 89, 97 (Hunt CJ).
9 Lowe [1973] 1 QB 702, 709 (The Court).
10 Dalby [1982] 1 All ER 916.
11 Rogers [2003] 1 WLR 1374; Kennedy (No 2) [2008] 1 AC 269.

6.4 Reasonable person

Lavender (2005) 222 CR 67, 73 (Gleeson CJ, McHugh, Gummow & Hayne JJ), quoting with
approving the trial judge:
[Y]ou have to compare the conduct of the accused as you find it to have been with the
conduct of a reasonable person who possesses the same personal attributes as the accused,
that is to say a person of the same age, having the same experience and knowledge as the
accused and the circumstances in which he found himself, and having the ordinary fortitude
and strength of mind which a reasonable person would have, and determine on that basis
whether the Crown has made out its case.

6.5 Driving causing death

Dangerous driving: Crimes Act 1900 (NSW) s 52A.

Negligent, furious or reckless driving: Road Transport Act 2013 (NSW) s 117.