Constructive Murder and Manslaughter

Criminal Laws, S1 2014, Class 3

Revision
1.) What patterns are evident in NSW homicides, and what
does this suggest about the ways in which social policy
might help to reduce homicide rates?
2.) What three alternatives would qualify as sufficient mens
rea for murder (i.e. malice aforethought)?
3.) How would you show that an accused intended to kill or
inflict grievous bodily harm on another person?
4.) What do you need to show for an accused to have acted
with reckless indifference to human life?
5.)How would you distinguish between knowledge of the
probability and possibility of death occurring?

Todays Class
Constructive Murder
Timing
Causation
Relevant Offences
Manslaughter by Unlawful Act
Manslaughter by Criminal Negligence

Constructive Murder (Felony Murder)

Previous common law approaches

Statute

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 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.

Ryan: Timing of Offences

1.) Robbery
Completed

2.) Act Causing

Death

3.) Bullet wounds body 4.) Bullet Causes

Death

1+3 = offence under s 98 (i.e. aggravated offence only completed at

3)
According to Barwick CJ, when does murder occur in relation to the s
98 offence?
Why is the distinction between 3 and 4 significant?
For an offence under s 98, does the prosecution need to prove an
intent to wound?
Is it necessary to show that the accused intended to kill the victim?

Munro: Causation
The defence to the felony murder was that the chain of
causation could not be seen to be traced from the attack through
to the death or, more particularly, that the actual wounding
ingredient in the felony had not in itself been a causative factor in
the death
What was the courts response to this contention:
Is it a requirement for constructive murder to show that the
unlawful act directly caused the death?
Does the Crown have to establish that a reasonable person in
the position of the accused would have foreseen that death
was likely to occur as a result of the offence being committed?

Relevant Offences in Crimes Act 1900

(NSW)

Section
Section
Section
Section
Section
Section
Section
Section
Section

33: Wounding with intent to cause GBH

33(2): Wounding with intent to resist arrest
33A(2) Discharging a firearm with intent to resist arrest
47: Using an explosive device or corrosive fluid with intent to cause GBH
61JA: Aggravated sexual assault in company
96: Robbery with wounding (Munro)
97(2): Armed robbery with a dangerous weapon
98: Robbery with arms and wounding (Ryan)
110: Breaking and entering and assaulting with intent to murder

Manslaughter
Voluntary manslaughter
The killing of a person which would otherwise be murder
but where liability is reduced due to some mitigating
circumstance (i.e. a defence)
Involuntary manslaughter
Manslaughter by unlawful act and manslaughter by
criminal negligence

Manslaughter by Unlawful Act (Wilson)

1.) What test or standard was offered by the House of Lords in DPP v Newbury?
2.) How was this test modified by the Victorian Supreme Court in Holzer?
3.) What reasons were given for favouring the Holzer test over that offered in
Newbury?
4.) What would the doctrine of battery manslaughter offered by Smith J in Holzer have
required, and why was this said to confuse the appropriate test for manslaughter by
unlawful act?
5.) On what basis might charges be laid for acts that would have constituted battery
manslaughter?
6.) On what basis did the High Court find that the trial judge erred in directing the jury?
Other points:
Defences
Omissions
Drug Offences

Lane [2013] NSWCCA 317

[55] An unlawful act is one which is contrary to the criminal law:
Wilson, per Brennan, Deane and Dawson JJ (at p 335). A dangerous
act is one carrying with it an appreciable risk of serious injury:
Wilson, per Mason CJ, Toohey, Gaudron and McHugh JJ (at p 333)
It is no part of this offence that the accused intended to cause
death or grievous bodily harm; if that were the case, the offence
would be murder. It is necessary, however, that the Crown prove
that the accused intended to commit the act that caused death. It
is also necessary that the Crown prove that a reasonable person in
the position of the accused, performing the act which the accused
performed, would have realised that he or she was exposing
another or others to that appreciable risk. In that respect, the test
of dangerousness is objective.

Lane [2013] NSWCCA 317

[57] In order to sustain a conviction of this category of manslaughter [by
unlawful act], it is necessary that the Crown prove:

(i) that the act causing death was a breach of the criminal law;

(ii) that the act causing death was one that carried with it an
appreciable risk
of serious injury to another or others;

(iii) that the act causing death was one that a reasonable person in
the position of the accused would have realized carried such a risk; and

(iv) that the accused person intended to commit the act that caused
death.

Manslaughter by Criminal Negligence:

Nydam

1.) What was the relevant test offered in Holzer?

2.) What test did the Victorian Supreme Court favour in Nydam?
3.) How would you therefore distinguish manslaughter by criminal
negligence from murder by reckless indifference?
4.) How would you distinguish the two types of involuntary manslaughter?

Nydam [1977] VR 430

The requisite mens rea is an intent to do the act which, in fact,
caused the death of the victim, but to do that act in circumstances
where the doing of it involves a great falling short of the standard
of care required of a reasonable man in the circumstances and a
high degree of risk or likelihood of the occurrence of death or
serious bodily harm if that standard of care was not observed, that
is to say, such a falling short and such a risk as to warrant
punishment under the criminal law.

Lane [2013] NSWCCA 317

[62] Accordingly, to sustain a conviction of this category of manslaughter [by criminal
negligence], it is necessary that the Crown prove:

(i) that the accused owed the victim a duty of care;

(ii) that the accused acted or omitted to act in such a way as to constitute a
breach of
that duty of care;

(iii) that that act or omission caused the death of the deceased; and

(iv) that the breach of duty was of such magnitude that it merited criminal
punishment.

Reasonable Person

Lavender

1.) For a charge of manslaughter by criminal negligence to be successful, does the

prosecution need to prove that the accused believed that the conduct engaged in was
unsafe?
2.) What knowledge and characteristics should be imputed to the reasonable person when
determining whether a person is guilty of manslaughter by criminal negligence?
3.) What if the accused cannot reach the standards of the reasonable person because of
some physical or mental deficiency?
4.) Do you think that the objective tests for manslaughter lead to guilty verdicts for individuals
who are not morally culpable?

Dangerous Driving

Reluctance of juries to convict of murder or manslaughter therefore less serious

statutory offences
Jiminez (1992) 173 CLR 572

Where accused falls asleep at wheel, voluntary act can be found in moments before this
This prior voluntary act must be dangerous
Interpreted as strict liability offence
Accused can therefore raise excuse of reasonable mistake of fact i.e. where the accused
genuinely believed that their driving was not dangerous
In that case, accused had no reason to believe that he would fall asleep

Section 52A(1): Dangerous driving occasioning death (10 yrs)

(2) Aggravated = 14 yrs
Section 52A(3): Dangerous driving occasioning GBH (7 yrs)
(4) Aggravated = 11 yrs
Aggravation (7) = BAC >0.15, >45km/h over speed limit, high-speed chase, drugs
Causation (6) = vehicle does not have to cause harm can run vehicle off road or
cause others to collide