LAW1114 Lecture Notes - Lecture 12: Bleeding, United Grand Lodge Of England, Criminal Appeal Reports
TOPIC&7:HOMICIDE&
!
Common%external/physical%elements%(including%causation)%
COMMON LAW DEFINITION OF MURDER/MANSLAUGHTER
Waller & Williams [4.1]-[4.2]: Some General Propositions about Criminal Homicide
• Murder (Sir Edward Coke (3
Co Inst 47
)): “…when a man of sound memory and of the age of discretion
unlawfully kills any reasonable creature in being, and under the King’s peace, with malice aforethought,
either express or implied by the law, the death taking place within a year and a day.”
o With the exception of ‘malice aforethought’, all the abovementioned elements are applicable to both
murder and manslaughter
Waller & Williams [4.3]: ‘Of sound memory and of age of discretion’
• ‘Sound memory’: ‘Sane’ or ‘not mentally impaired’
• ‘Age of discretion’: Age a child can be held criminally responsible
Waller & Williams [4.3]: ‘Unlawfully’
• Forms of lawful homicide under old Common Law:
(1)
Justifiable homicide:
Springs from killer’s right or duty to kill in the situation in which that person
was placed, and resulted in a complete acquittal of all wrongdoing
(2)
Excusable homicide:
Regarded as morally blameworthy, but not deserving of criminal punishment
Waller & Williams [4.12]: ‘Any reasonable creature in being’
• ‘Reasonable’: Human
Waller & Williams [4.21]: Death
• Human Tissue Act 1982 (Vic), s 41: For the purposes of the law of Victoria, a person has died when there
has occurred－
(a) Irreversible cessation of circulation of blood in the body of the person; or
(b) Irreversible cessation of all function if the brain of the person.
Waller & Williams [4.22]: ‘Under the King’s peace’
• ‘King’s peace’: Extends to everyone within the territorial bounds of the relevant jurisdiction
o Crimes Act 1958 (Vic), s 9: There is jurisdiction if either the act of killing or the death occurs within
the state
o
Ward v R
(1980) 29 ALR 175: The accused stood at the top of a steep bank at the Victorian side of
the Murray River shot and killed the deceased who was fishing 30ft below. It was found on appeal to
the High Court that the killing had occurred in NSW, as this was where it took effect on the victim.
From this, it is surmised that the position from where the accused shot from does not determine the
locus of the homicide.
o
R v Graham
: The boundary of Victoria and NSW comprises a line drawn along the top of the south
bank of the Murray.
Crimes Act 1958 (Vic)
Section 9AA: Abolition of year-and-a-day rule
(1) The rule of law known as the year-and-a-day rule (under which an act or omission that in fact causes
death is not regarded as the cause of death if the death occurs more than a year and a day after the act or
omission) is abolished.
(2) This section does not apply to acts or omissions alleged to have occurred—
(a) before the commencement of the Crimes (Year and a Day Rule) Act 1991; or
(b) between two dates, one before and one after that commencement.
(A) ‘KILLS’
Human Tissue Act 1982 (Vic)
Section 41: Definition of death
For the purposes of the law of Victoria, a person has died when there has occurred－
(a) irreversible cessation of circulation of blood in the body of the person; or
(b) irreversible cessation of all function if the brain of the person.
Ugle%v%R%(2002)%211%CLR%171%
• Parties: Ugle (appellant); R (respondent)
• Jurisdiction: High Court of Australia
• Material!facts:!
o The victim died from a knife wound to the chest, and the appellant held the said knife at the time of the
incident.%
o The appellant claimed that the deceased had been attacking him with a cricket bat, and he had been
trying to fend off the deceased at the time, thereby acting in self-defence.%
o The!trial!judge!had!not!give!a!jury!direction!regarding!unwilled!acts,!and!the!appellant!was!found!
guilty.%
o The!appellant!appealed!unsuccessfully!to!the!Supreme!Court!of!WA.%
• Legal issue: Whether the insertion of the knife was a voluntary act (an act willed by the appellant) and
was it necessary for the trial judge to provide jury direction regarding unwilled acts %
• Held (findings):%A jury direction regarding unwilled acts should have been provided as the jury%
%
Waller & Williams [4.26]: Willed Act
• Required!in!Common!Law!that!the!death!of!the!deceased!be!caused!by!a!willed!act!or!omission!on!
the!part!of!the!accused!
• Necessary!in!determination!of!causation!to!discover!what!the!relevant!willed!act!or!omission!caused!
the!death!of!the!deceased!!
Ryan v R
(1967) 121 CLR 205, 214, 231:
• Ryan had his finger on the trigger of a loaded gun when he went to rob a service station. He cocked the
gun and pointed it at the deceased’s back and tried to find a cord with his other hard. The deceased’s
sudden movement caused him to step causing the gun to discharge killing the deceased
• ‘Logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the
several specified conditions or concomitants must be predicted if the terms of s 18 are to be satisfied’
o ‘The choice of the act causing a death is not for the presiding judge or the Court of Criminal Appeal: it
is essentially a matter for the jury under proper direction’
(B) HUMAN BEING
Waller & Williams [4.12]-[4.14]: ‘Any reasonable creature in being’
• ‘Reasonable’: Human
• Exceptions: A child
en ventre sa mere
(in the womb) is not ‘in being’
o
R v Hatty
[1953] VLR 338, 339 (Barry J): ‘Legally, a person is not in being until he or she is fully
born in a living state. A baby is fully and completely born when it is completely delivered from the
body of its mother and it has a separate and independent existence in the sense that it does not derive
its power of living from its mother. It is not material that the child may still be attached to the mother
by the umbilical cord; that does not prevent it from having a separate existence. But it is
required…that the child should have an existence separate from and independent of its mother, and
that occurs when the child is fully extended from its mother’s body and is living by virtue of the
functioning of its own organs.’
o
R v West
[1848] ER 78
; R v Iby
[2005] NSWCCA 178: Once a baby is born alive it is capable of
being the victim of murder or manslaughter, even if it is too weak to survive
o
R v West
(1848) 2 Cox CC 500: If a child is injured whilst in the womb or during the course of birth,
and is born alive but thereafter dies of the injuries received, homicide has been committed, and the
Document Summary
Age of discretion": age a child can be held criminally responsible. W a lle r & w illia m s [ 4 . 2 2 ] : u n d e r th e k in g " s p e a c e ". It was found on appeal to the high court that the killing had occurred in nsw, as this was where it took effect on the victim. Human tissue act 1982 (vic) s e c tio n 4 1 : d e f in itio n o f d e a th. Ugle v r (2002) 211 clr 171: parties: ugle (appellant); r (respondent, material facts: He cocked the gun and pointed it at the deceased"s back and tried to find a cord with his other hard. The deceased"s sudden movement caused him to step causing the gun to discharge killing the deceased.
