Homicide Cases

R v Crabbe (1985) (Reckless indifference to human life Murder) reckless indifference; requires foresight on the part of the accused as to the probability of death or GBH resulting from their action. SUBJECTIVE not reasonable person.

Royall v R, 1991, HCA. Facts: Kelly Healey (V) died from falling from the bathroom window of the sixth floor where she and A had lived for 4 months. She had probably undressed and showered before falling. Their relationship was not going well before the death. Before the jumping, V was assaulted by A Crown case: o A pushed V out of the window o A physically attacked V and in trying to avoid the attack V fell out of the window o Before the fall, V was scared that if she remained in the bathroom she would be subject to life-threatening violence from A and therefore jumped As case: o A was concerned because V was showering and he heard a thump on the wall. He knew that V used amphetamines and suffered from epilepsy o A forced the door open with a knife and banged on the door till it opened. At this point V was going out the window Issue: was there intent to kill/harm at time of conduct causing death?

Legal Reasoning: Mason CJ The intervening act of the deceased does not break the chain of causation. (in cases of violence) Ashtray scenario not problematic Common sense Test: o Was the death a natural consequence of the defendants actions? where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accuseds conduct. Problem if action was irrational or unexpected Linked to foreseeability

McHugh J As a matter of common sense, was there a link between the defendants action and the death? Action does not have to be main or sole cause I do not think that either principle or policy requires the conclusion that an accused is not causally responsible of the harm suffered by the victim simply because the accuseds act or omission has caused the victim to act unreasonably. Often people in fear will not act rationally. An accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accuseds conduct. In determining whether a reasonable person could have foreseen the harm...any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case. Question here is was the death of the deceased a reasonably foreseeable consequence of the applicants conduct? Here anyway A probably caused V to fall Mens rea must occur at the time of the conduct causing death, not at the time of the death

R v Crabbe, 1985, HCA. Facts: R had driven a road train (prime mover and three trailers) to Ayers Rock and carried out his work In the evening he drank a lot and he was physically ejected from the bar for his behaviour After this, R drove the prime mover through the wall and into the bar, killing 5 people. He did nothing to assist

Legal Reasoning: Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ Pemble Barwick CJ held that death must be possible, Gibbs and Jacobs JJ held that death must be a probable consequence of behaviour Test: a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent and intention...) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm. (sound in principle) The word probable means likely to happen

Indifference can be a factor, but is not determinative Cannot be wilfully blind unless one knows that consequences were probable

MANSLAUGHTER Level 3 imprisonment (s 5 Crimes Act) Objective mens rea, but must look at act from mind of D (Lamb) Two types: Gross negligence A gross falling short of the standard of care of a reasonable person (Nydam) Require a high risk of really serious injury or death Unlawful and dangerous act Unlawful: a breach of the criminal law (must prove actus reus and mens rea) Nydam v R, FCSCV, 1977. Facts: Agreement made between N and customer about how to govern their relationship did not work out N threw petrol towards customer and employee of salon and lit it both of them died (acquaintance homicide) N told the police that he wanted to take his own life and no one elses N was found guilty of murder, but appealed

Legal Reasoning: Young CJ, McInerney and Crockett JJ No doubt manslaughter does involve mens rea. But...the necessary intent is no more than an intent to do the acts which constitute the crime. o Requisite mens rea in criminal negligence manslaughter (as opposed to reckless) does not involve a consciousness on the part of the accused of the likelihood of his acts causing death or serious bodily harm o Rather, it is an intent to do the act which, in fact, caused the death of the victim Act is done where its doing 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...if that standard of care was not observed...

Test: In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.

Ryan v The Queen (1967) 121 CLR 205, (Voluntariness / Causation) Robbery, Surprise, Gun dicharge killing the assistant instantly. The Crimes Act 1900 (NSW) requires that "murder shall be committed where the act of the accused causing the death charged". Barwick CJ. said at 213: That a crime cannot be committed except by an act or omission is axiomatic. It is basic, in my opinion, that the act of an accused must be a willed, a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended. Was the firing of the gun willed so as to constitute an act for the purposes of the murder charge? Despite accepting that the actual discharge was involuntary, Barwick CJ. confirmed the murder conviction because involuntary discharge was a likelihood which ought to have been in the contemplation of the applicant when presenting the gun in the circumstances.

R v Taktak, 1988, NSWCCA Facts: A was convicted of manslaughter of Linda Kirby (LK) A was heroin addict, was asked by Rabih (drug dealer) to procure two prostitutes for a party Rabih asked A to take LK away, but she was very sick, and started vomiting, wouldnt wake up At 10am in the morning the doctor was called on, and concluded that LK was dead and had been for 1-2 hours. Found that could have died anytime between 4:30am and 9:15am Legal Reasoning: Carruthers J

Omission not to obtain medical treatment for LK was conscious and voluntary A owed duty of care as he placed LK in exclusive custody and control, removing her from aid of others However, question of time not known if there was enough time to assess health Yeldham J Two view: could have left LK in foyer to die or left her and hoped that others could have helped her better than him However possible that nothing A did would save her may not have been time for doctor to come Mere negligence or inadvertence not enough, must be wicked negligence