Homicide I: murder and the partial defences

Question 1

Homicide

Answer 1

Actus reus: unlawfully causes the death of the victim
a. baby is born and has existence independent of mother: protected
b. it does not matter whether injury occured in womb, it is time of death that is relevant
c. legal definition of death: it occurs when brain stem has died
d. there must be causation

Question 2

Murder

Answer 2

Unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought:
1. Actus reus: cause the death to a human being (under peace). During time of wars: have a defence to murder
2. Mens rea: malice aforethought (but no malice required) actually means an intention either to kill or to cause grievous bodily harm.
a.* Direct intent*: death or grievous harm was D’s aim or purporse
b. Indirect intent: death or serious harm is not D’s aim, but is a virtually certain consequences of their actions and the D appreciates this.

Subject to mandatory life sentence: means judge will decide the minimum term that D must serve, and then they can be released, and be subject to a life license (may be recalled to prison if they commit further offence)

Question 3

Manslaughter

Answer 3

Two types: voluntary and involuntary.
Different from murder: judge has discretion in sentencing (no mandatory life sentence)

Question 4

Voluntary manslaughter

Answer 4

• the Jury has conclude that D has satisfied elements of murder.
• Partial defence where a murder will be treated as voluntary manslaugher:
  1. diminished responsibility
  2. loss of control
  3. suicide pact: rarely raised as defence
  “Partial defences” are defence only to murder.

Question 5

Diminished responsibility

Answer 5

4 elements need to be proved:
1. abnormally of mental functioning
2. arose from recognised medical condition
3. substantially impaired the D’s ability to understand the nature of their conduct, and/or form a rational judgment and/or exercise self control; and
4. provides an explanation for D’s act or omission in killing.

Special evidential issue: prosecution has burden proof to provide actus reus and mens rea of homicide beyond reasonable doubt. Burden to prove diminished responsibility switches to the defendant.

Question 6

Loss of control

Answer 6

1. D must lose self control
2. loss of control must be a qualifying trigger
3. person of D’s **sex and age, **with normal degree of tolerance and self restraint and in the circumstances of the D, might reacted in the same wor similar way.

Evidential issues: conventional burden of proof : provided that accused produce some evidence that raise the defence, burden will be on prosecution to disprove loss of control beyond reasonable doubt.

Question 7

Loss of control

Answer 7

1. no need to be sudden: may be sudden, or may be a response to a culmination of events such as incidents of abuse that occur over time
2. will NOT apply in a considered desire for revenge:
   a. D arms themselves with a weapon
   b. there is evidence of planning
   c. there is significant delay between provoking words or conduct and killing

Question 8

Qualifying trigger

Answer 8

1. known as “fear” and “anger” triggers: loss of control must be result of one or combination of both.
2. D cannot rely on the triggers where they have incited/provoked the situation
3. Fear: loss of control was attributable to the D’s fear of serious violence from victim against D or another identified person (genuine fear of violence even if the fear is not reasonable)
4. Anger: loss of control was attributable to things said and/or done that amounted to circumstances of an extremely grave character and caused D to have a justifiable sense of having been seriously wronged
5. Sexual infidelity : cannot be relied upon on its own as qualifying trigger, but can be taken into account in assessing other qualifying triggers

Question 9

Similar reaction of a person of the same age and sex

Answer 9

1. Gender: presume female are generally less physically powerful
2. Age: objective
3. D’s circumstances: all are taken into account except D’s general capacity for tolerance and self control (e.g. aggression/short temper)

Question 10

Sufficiency of evidence

Answer 10

Defence of loss of control can only be presented to jury if there is sufficient edvidence that in the opinion of the trial judge, a jury properly directed could reasonably conclude that the defence might apply