Murder

1. Definition → **s18(1)(a) Crimes Act 1900 (NSW)**.

   1. 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.

2. Onus.

   1. Is on the prosecution, which has the legal burden to prove beyond reasonable doubt that the accused is guilty of murder → Woolmington.

3. Maximum penalty.

   1. 25 years.

4. Actus reus → all three elements listed required.

   1. Act or omission.
      1. Identify the exact act causing death.
         1. Arulthilakan v R (2003) 78 ALJR 257.
      2. Where there are two or more potential acts, it is for the jury to decide which to use.
         1. Royall v R (1991) 172 CLR 378 per Mason J.
      3. All acts are presumed to be 'voluntary and willed'.
         1. Bratty v Attorney-General for Northern Ireland [1963] AC 386.
      4. Omission → the accused must first owe a duty of care to the deceased and exercise deliberate choice to do nothing.
         1. R v SW and WB (No 1) [2009] NSWSC 529.
   2. Causation.
      1. There must be a causal link between the act and death of the victim.
      2. Generally, causation will be obvious.
      3. Novus actus interveniens → if not obvious, it becomes a question of where there was a novus actus interveniens breaking the chain of causation.
      4. Jury to decide → intervening acts are decided by the jury → a matter of fact, not law (as decided by judge).
      5. Three types of breaks → case law.
         1. Third party → intervening act or omission by a third party → generally an issue of medical negligence.
            1. Where there is a controversial question of causation relating to medical negligence, it is one for the jury to decide.
               1. R v Evans and Gardiner (No 2) [1976] VR 523.
               2. R v Jordan (1956) 40 Cr App R 152
            2. Test → if at the time of death the original would is still substantial and operating cause, then the death can be properly said to be the result of the would albeit that some other cause of death is operating → R v Smith [1959] 2 QB 35.
            3. As a practical matter, juries are unlikely to return a decision favourable to the accused → it will always find that medical negligence has not broken the chain of causation between the act and death → R v Cheshire [1991] 1 WLR 844.
               1. Whether or not the conduct of the doctors is negligent or reckless, there will always be an issue of causation that must be resolved by the jury.
         2. Acts of nature.
            1. The ordinary operation of acts of nature (eg. tide) will not break the chain of causation → Hallett v R [1969] SASR 141.
            2. An extraordinary natural cause such as the earthquake or tidal wave might break the chain of causation, but it is for the jury to resolve by applying the substantial and operating cause test from Smith.
         3. Acts of the victim.
            1. Generally a free, informed and voluntary act of the victim can break the chain of causation.
               1. R v Blaue [1975] 1 WLR 1411.
               2. R v Bingapore [1975] 11 SASR 469.
            2. Refusing medical treatment / rejecting medical advice.
               1. The rejection of medical treatment will not break the chain of causation → Blaue; Bingapore.
               2. Must take your victim as you find them → Blaue.
               3. It is still the initial injury which is substantial cause of death and the act of the victim was not to stop the end from coming → Bingapore.
            3. Fright or self-preservation cases.
               1. Test → was the response of the victim a reasonable or proportionate one? → Royall per Deane and Dawson JJ, Toohey and Gaudron JJ; Burns.
                  1. If yes → the chain of causation between the violence of the accused and the death of the victim will remain intact.
                  2. If no → then causation between act and death not established.
               2. Means of escape (causing death) → the means of escape taken by the victim doesn't need to be reasonable → Royall.
   3. Death.
      1. The accused's act has caused the death of the victim in accordance with s33 of the Human Tissue Act 1983 (NSW) when there is irreversible cessation of all function of the person's brain or circulation of the blood around the body.

5. Mens rea.

   1. Subjective test.
      1. Actual intention (mens rea) of the accused can be inferred from what they do at the time of the relevant conduct (R v Stokes and Difford (1990) 51 A Crim R 25) as well as their conduct afterwards (The Queen v Baden-Clay (2016) 258 CLR 308).
         1. State of the accused → age, background, education, emotional state and state of sobriety are things that can be considered.
            1. Pemble (1971) 124 CLR 107.
         2. Words said → at the time of the relevant events, words of the accused can also be considered.
            1. Matthews v R [2014] NSWCCA 151 at [77]-[98].
         3. Wilful blindness → is not enough to establish mens rea for murder → it is evidence that bears on the real question of mens rea that you foresaw.
      2. Exam note → If the facts show clear intent to kill, (ie, stab in heart, pushed off a cliff, shooting), then only discuss intent to kill and/or commit GBH. If facts are more like R v Khan [2016] NSWSC 1073 where there is no direct killing act, then only need to discuss reckless indifference murder because it is clear there is no intent to kill/commit GBH.
   2. Elements → only need one.
      1. Intent to cause death (kill).
         1. Anyone → Saunders & Archer (1575).
      2. Intent to inflict GBH.
         1. Crimes Act 1900 (NSW).
            1. s4 → permanent serious disfiguring of person (s4(1)(b)), any GBH diseases (s4(1)(c)), or destruction of foetus's (s4(1)(a)).
            2. 'Serious' → need not be permanent or consequences of injury long lasting or life threatening, only that it be really serious (Houl) → natural and ordinary meaning → DPP v Smith.
      3. Reckless indifference to human life (RIHL).
         1. Test → to establish reckless murder at common law, the Crown must prove that the accused foresaw the probability of death or GBH.
            1. Crabbe.
            2. Note → probability, not possibility.
         2. NSW position → foresight of the probability of death, GBH is not enough to prove RIHL as a mens rea element → Royall; Solomon.

6. Intent and reckless indifference.

   1. Heads of mens rea for murder under s18(1)(a) include both intent to kill and intent to inflict GBH.
      1. In NSW, where the accused foresees death as certain, they will have the mens rea for murder on the basis that they were recklessly indifferent to human life within the meaning of the section.
   2. HCA draws distinction between awareness and probability of death or GBH resulting from their actions and mere awareness of possibility.
   3. Intention.
      1. Carrying their ordinary meaning.
      2. Intent may be inferred or concluded from the circumstances or from the conduct.
   4. Reckless indifference.
      1. If at the time they committed the act, the accused foresaw or realised the act would probably cause death, but continued to commit the act, then they will be guilty.
      2. It must be foreseen as a probably consequence.
      3. In Royall → HCA held that the decision in Crabbe on mens rea for murder at common law should apply equally to the interpretation of reckless indifference to human life under s18(1)(a).

7. Relevance of foreseeability.

   1. Clearly relevant to the question of mens rea.
   2. However → the judgements of Brennan and McHugh JJ in Royall raise issue of relevance to causation.
      1. Argued the chain of causation will not be broken if the deceased's reaction was 'reasonably foreseeable'.
      2. Majority take the position framing it in those terms was not helpful, insisting it should be reasonable or proportionate.
   3. In McAuliffe → NSWCCA drew attention to differing views in Royall of when it is appropriate to raise foreseeability when considering causation.
      1. Commented on the facts before it there was not question of an overreaction on the part of the deceased such as might call for the introduction of notion of foreseeability.

8. Breaking the chain of causation → acts of the deceased.

   1. Question of whether the decision of the deceased to intervene / not intervene breaks the chain.
      1. In Burns → supplying of drug did not equate to causation because decisions to take it were the deceased's own, and had they refrained, the harm would not have followed.
      2. In Blaue → died from refusing a transfusion from wounds sustained from the defendant, and may have survived had she not refused the transfusion.
      3. In Royall → had not made direct contact with the body before she jumped, she simply feared attack and took evasive action.
   2. Raises questions of whether the deceased's behaviour is 'reasonable' 'proportional' in order to address argument of whether they overreacted.
   3. Implication is that if someone 'overreacted', this would break the chain of causation, though should be compared with vigorous injection of reasonableness in relation to religious beliefs in Blaue.

9. Suicide.

   1. Hallett → if he had gone into the water and drowned himself following the attack, the chain of causation would have been broken.
   2. Justin's → in this euthanasia case, the doctor would have been liable if the patient did not have the mental capacity to decide, but if they did, the chain was broken.
   3. Wallace → was incapable of suicide himself, and was voluntarily euthanised. He committed suicide as a result of the acid thrown on him. Held the jury could decide if it were the fault of the accused, but they must decide if at the time of the attack, it was foreseeable he would commit suicide from injuries.

10. Means of escape.

    1. Raised in Royall → whether mode of escape must be natural consequence of the apprehension for their safety in a context where there are alternatives to be chosen.
    2. Rik → various escape options held to be available, and court emphasised whether the response was reasonable or proportionate in the circumstances, were the determination of a jury.

11. Medical treatment.

    1. Malcherek and Steel [1981] 2 All ER 422.
       1. There may be occasions, although rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show the treatment would not have been administered in the same way by other practitioners.
       2. In other words → the fact that the victim has died, despite or because of the medical treatment for the injury given by careful and skilful medical practitioners, will not exonerate the original assailant from responsibility for the death.
       3. Where a medical practitioner adopting methods which are generally accepted comes bona fide and conscientiously to the conclusion the patient is for practical purposes dead, and that such vital functions as exist are being maintained solely by mechanical means, and therefore discontinues treatment, that does not prevent the person who inflicted the initial injury from being responsible for the victim's death.
    2. Apply **s33 Human Tissue Act 1983 (NSW)**.