Flashcards in Homicide Deck (21):
In murder foresight of the victim's death as a virtual certainty entitles (not obliges) the jury to find an intent to kill, overturning Smith.
Bland (2 precedents)
1. Terminating life support is an omission because it is the underlying ailment that causes death.
2. Only complete destruction of the brain stem can constitute death.
For murder an omission to act may make D liable where she has contributed to the life-threatening state of affairs.
A-G Ref No.3 of 1994
1. A fetus only becomes a human being when it attains an existence independent of the mother.
2. If D intends to kill the baby post birth this is murder, for which D must intend to kill a person.
If D places V in a situation where he is killed by the reasonably foreseeable/justified and involuntary response of T D is causally responsible for V's death.
An intent to do GBH is sufficient for murder.
Devlin J offered a test as to whether D had subjectively lost control - D must have been so overwhelmed by emotion so as to make him "not master of his mind".
Clinton (2 precedents)
Sexual infidelity is to be excluded as a qualifying trigger for the loss of control defence but its presence does not preclude the defence if there are other qualifying triggers.
Sexual infidelity is relevant to establishing the trigger under S.55(4) and under the reasonable person test.
Since D had incited the violence committed against him by V he could not bring the defence.
The reasonable person is sober; evidence of intoxication is precluded under S.54(3) unless it was relevant in some other way,
For constructive manslaughter the act must be criminal per se, not merely a lawful act done so carelessly as to attract criminal liability, excluding regulatory (eg food safety) and driving offences from the ambit of constructive manslaughter.
The Church formulation requires the reasonable person to be invested with D's knowledge at the time of the act.
Constructive manslaughter requires a dangerous act - one which "all sober and reasonable people would recognize as subjecting the victim to the risk of some, albeit not serious harm"
For constructive manslaughter the act must be a criminal act and not merely an act attracting civil liability.
Constructive manslaughter can only be committed by a positive act.
If D is to be held liable for an omission he must be shown to have owed a duty of care to V.
Bateman (2 precedents)
For GNM the breach must have been so gross, in terms of D's disregard for the life and safety of others, as to warrant criminal conviction.
The test is of D's conduct (objective) and not his disposition or intent.
The test of gross negligence in Bateman is to be applied to the risk of causing death and not some lesser risk.
Misra (2 precedents)
The test of grossness is a test of FACT not law.
The severity of negligence for GNM must be greater than that required to attract civil liability.
JM and SM
For the Church formulation it is not necessary to show that the reasonable person would have foreseen the type of harm suffered by V, merely that D's conduct subjected V to the risk of harm.