Legal Studies U1 AOS 2 KK7 - Murder

4 elements of murder

Mens rea:

• the killing was unlawful

• the accused acted with intent to kill or cause serious harm

Actus reus:

• the accused's acts were voluntary

• the accused committed acts that caused the victims death,

The killing was unlawful

The accused cannot be found guilty of murder if there was legal justification for their actions

Examples of legal justification

Soldiers in battle, police duties, self defence

Acting with the intent to kill or cause serious harm

prosecution must prove that the accused committed the crime with the intent to kill or cause serious harm (intentional or reckless)

The accused actions were voluntary

Prosecution must prove the accused committed the acts when they were awake, aware, and in control of their bodily actions.

The act committed caused the death

prosecution must prove the accused's acts contributed significantly to the victim's death - this means causation, a direct and unbroken link between the act of the accused and the death of the victim, has to be proven.

4 murder defences

• Self defence

• Mental impairment

• Duress

• Sudden or extraordinary emergency

Self-defence

the legal right to use reasonable force to protect oneself against injury from another in a situation where the individual thinks it is necessary for survival

self defence can be used if the accused believed:

• their actions were necessary for protection

• was a reasonable response

Mental impairment

a condition of the mind that impacts on a person’s ability to know the nature and quality of their conduct, or that the conduct was wrong

mental impairment can be used if the accused:

• had little understanding of the nature and quality of their actions

• was unaware that their actions were wrong

Duress

strong mental pressure on someone to overcome their independent will and force them to do something

duress can be used if the accused believed:

• a threat of harm existed

• the threat would have been carried out unless the offence was committed

• was a reasonable way to avoid threatened harm

Sudden or extraordinary emergency

• There was a sudden or extraordinary emergency involving risks of death and serious injury

• the only reasonable way of dealing with the situation

malice aforethought

the intention to kill or harm (distinguishes murder from unlawful killing)

murder

the unlawful killing of a human being with malice aforethought

homicide

an act in which a person causes the death of another person

manslaughter

unintentional killing of a person due to reckless, dangerous, or negligent behaviour

child homicide

the killing of a child under 6 years of age in circumstances that would normally be manslaughter

culpable driving causing death

the act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner or while under the influence of drugs or alcohol

Factors considered when determining a sentence

• nature and gravity of the offence

• vulnerability of the victim

• offenders conduct after committing the crime

• offenders personal circumstances

• guilty plea

Nature and gravity of the offence

• The use of a weapon, ( type or how it was used)

• commission of the attack, (committed in front of children or in a public space)

Vulnerability of the victim

Someone who is relatively vulnerable or defenceless such as:

• an individual under 18 years of age

• an elderly person

• a person with a physical disability,

• a person with significantly impaired intelligence or a mental disorder.

Offenders conduct after committing the offence

Refers to the offenders actions following the offence which affects the duration of the sentence

• may display genuine remorse (eg. cooperating with police)

• may act in a cruel or heartless way after the offence (eg. the way they dispose the body)

Offenders personal circumstances

• personal history

• mental health

• good or poor character

• previous convictions

Guilty plea

leads to the judge imposing a less severe sentence than they would have otherwise imposed.

Groups impacted by the offence

• victim (inclusive of family and friends)

• community

• offender

Impact of murder on victim (family + friends)

• loss of life

• experience of grief, shock, confusion, fear, anger, and long-lasting emotional trauma.

Impact of murder on community

• destroys public confidence in the ability of the police and the justice system to protect the public.

• feeling unsafe or vulnerable in their home or area

• limit interactions as a precaution

Impact of murder on offender

• affected by harsh prison conditions and isolation from outside world

• feelings of grief, shame and remorse

• family experiences financial hardships due to significant legal costs

• difficulty re-establishing connections upon release