5035LAW Lecture Notes - Lecture 5: Crimes Act 1958, Victorian Railways S Class, Cleft Lip And Cleft Palate
END OF LIFE
Babies -Common law – born alive rule
oRequires
Birth
Life
oCriteria depends on case (breath, circulation of blood etc)
-Birth and alive at/after birth
oS 292
oR v Hutty
What constitutes breathing?
oR v Handley
S 20 Crimes Act 1900 (NSW)
oIndependent circulation?
oAny indication of life?
R v Iby – any sign of life = alive
Criminal responsibility for child death after a driving accident where a man crashed
into a car with a pregnant woman
C section required
Child died
Brain activity not clear nor breath but did have other life signs
Born alive can be satisfied by any sign of life (crying, breath, movement etc)
Accused found guilty
CURRENT AUST COMMON LAW POSITION
Life and death Crimes Act 1900 (NSW) s 20
-Cannot constitute murder if no breath
-Manslaughter requires just a sign of life
Transplantation and Anatomy Act 1979 (Qld) s 45
-Criteria = brain death
-Persistent vegetative state – can still show life not brain death
oStill functioning brain stem
-Heart can keep beating without link to the brain
-Can a person be legally alive and dead at the same time?
oYes – conjoined twins
oAnencephalic infant
Lord Goff and
Bland
-Omissions only with a duty are liable however, if they are futile they are not liable
oDefence to allow early death
oS 296 – acceleration of death
oBest interests
oS 285 = duty
oIntent to kill = can result in murder
oConsent irrelevant
ABORTION
Abortion -Abortion law in QLD is flawed and s 282 can apply in a variety of circumstances – it is broad
-R v Leach & Brennan (Cairns case)
-R v Cullen
-Rights of mother prevails
-Only surgical operations recovered in s282 before amendment
Sections
S 224 Attempts to procure abortion
S 225 The like by women with child
S 226 Supplying drugs or instruments to procure abortion
S 282 (1) EXCEPTION (necessity)
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Document Summary
Common law born alive rule: requires. Life: criteria depends on case (breath, circulation of blood etc) Birth and alive at/after birth: s 292, r v hutty. What constitutes breathing: r v handley. R v iby any sign of life = alive. Criminal responsibility for child death after a driving accident where a man crashed into a car with a pregnant woman. Brain activity not clear nor breath but did have other life signs. Born alive can be satisfied by any sign of life (crying, breath, movement etc) Life and death crimes act 1900 (nsw) s 20. Manslaughter requires just a sign of life. Transplantation and anatomy act 1979 (qld) s 45. Persistent vegetative state can still show life not brain death: still functioning brain stem. Heart can keep beating without link to the brain. Can a person be legally alive and dead at the same time: yes conjoined twins, anencephalic infant.
