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.

7. Relevance of foreseeability.

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

9. Suicide.

10. Means of escape.

11. Medical treatment.

12. Temporal coincidence (TC).

13. Key cases → murder → AR.

14. Key cases → murder → MR.

Constructive murder

1. Summary.
2. Burden of proof.