Murder Exam Notes

Causation and Intervening Events

• Intervening Events in Murder Cases:
  • More opportunities for intervening events in murder cases compared to assault due to the time between serious injury and death.
  • The legal principles for causation remain the same as in assault cases.
• Application of Causation:
  • Causation principles apply to all offenses where causation is relevant.
  • Authority on causation can be used even if not directly considering burden on the facts.

Defining Murder

• Old Definition of Murder:
  • Avoid being misled by the old definition of murder.
  • The core elements involve an act (actus reus) causing death and a required mental state (mens rea).
• Actus Reus:
  • There must be a death.
  • The death must be of a human being.
• Mens Rea (Four Alternatives):
  • Satisfying any one of the following conditions is sufficient:
    1. Intent to Kill: The highest threshold.
    2. Intent to Cause Really Serious Injury:
       • Almost as serious as intending to kill due to the extremity of serious bodily harm.
    3. Recklessness (Subjective Test):
       • Did the accused perceive death as a probable consequence of their actions?
       • Or, did they perceive really serious injury as a probable consequence?
  • Apply the subjective test to the facts, considering what the accused actually knew or thought at the time.

Legal Definition and Context

• Common Law Offense:
  • Murder is defined by common law, not the Crimes Act.
  • Ignore sentencing information as it's irrelevant to determining guilt.
• Legal Person:
  • The deceased must be a legal person.
  • Whether the deceased was a legal person is generally not contentious.
• Fetus Considerations:
  • Injury to a fetus causing harm to the mother is not murder.
  • If a child is injured in the womb, born alive, and then dies from those injuries, it can be considered murder.
    • The legal definition of a human being is when the child is fully expelled from the mother's body.
  • Legal personhood begins when the child is entirely outside the mother's body.
• Point of Death:
  • Death is defined as the irreversible cessation of blood circulation or brain function.
  • Expert evidence is required to determine the exact moment of death.

Doctrine of Transferred Malice

• Application:
  • Relevant to both murder and assault cases.
  • If someone intends to harm one person but accidentally harms another, the intent transfers to the actual victim.
• Example:
  • If the accused intends to assault Person A but accidentally injures Person B, the intent to harm Person A transfers to Person B.
• Practical Note:
  • Include this doctrine in both murder and assault notes for completeness.

Intent and Recklessness: CRAB Case

• CRAB Case Significance:
  • Clarifies the similarity between intent to kill and foresight of death or really serious injury as a probable consequence.
• Threshold of Probability:
  • Probability should not be reworded as "possible" or similar weaker terms.
• Applying CRAB:
  • Use CRAB to explain that "probable" means substantial or likely to happen.
  • Judgments can help interpret legal terms and threshold requirements.
• Avoiding Mathematical Expressions:
  • Do not quantify probability with specific percentages (e.g., 50%, 51%, 60%) as this can mislead the jury.
• Usefulness of Recklessness:
  • Helpful when intent is hard to prove or when the accused didn't have a specific victim in mind.
  • Useful when the accused was unsure if their actions would hurt or kill anyone.
• CRAB Example:
  • Accused drove a truck into a pub after being ejected for disorderly behavior.
  • The prosecution argued the accused foresaw that someone was probably in the pub and would likely be killed or seriously injured.
  • Recklessness is useful here because it doesn't require proving the accused definitely knew someone was in the pub.
• Jury Considerations:
  • If recklessness is not a meaningful issue, it shouldn't be presented to the jury to avoid confusion.

Act or Omission

• Murder by Omission:
  • Theoretically possible if there's a duty of care and intentional failure to act leads to death.
  • Never practically applied or resolved in Victoria, but awareness is needed.
• Curriculum Implications:
  • Murder by omission is not considered in the Monash curriculum.
  • Omissions on the facts will only be relevant to negligent manslaughter.

Authority and Legal Explanations

• Using Case Law:
  • Use cases to explain how legal terms should be interpreted.
  • Expand on common law principles with relevant case law explanations and synonyms.
• Benefit of Explanations:
  • Aids conceptualization of the law, especially with new words or figures.

Screening Issues: Voluntary Act

• Relevance:
  • Relevant to every offense, including assault.
  • Reflexes: The most ambiguous; whether a reflex is truly voluntary is a question of fact for the jury.
• Arguments:
  • Accused may argue that an action (e.g., stabbing) was not voluntary during a fight.
  • Example: "I was just holding the knife, and the victim impaled themselves."
• Omission vs. Act:
  • Holding a knife alone may be considered an omission (failure to do something), not a voluntary act causing death.
• Intervening Event:
  • The victim's action of impaling themselves could be argued as a voluntary and informed intervening event that broke the chain of causation.
• Loaded Weapon Scenarios:
  • Accused may argue that firing a weapon was accidental (e.g., sneezing caused the trigger to be pulled).
  • In these cases, the issue may be with the voluntariness of pulling the trigger.

Voluntariness and Manslaughter

• Manslaughter as Alternative:
  • Helpful in cases where discrete elements of murder are difficult to prove.
• Four Options for Voluntariness (with a Gun):
  1. Accused discharges the gun voluntarily with intent to kill:
  * Actus reus and mens rea for murder are satisfied.
  2. Accused discharges the gun intending to frighten the victim:
  * Requires proof of recklessness (foresight of probable death or serious injury).
  * Jury must be satisfied the accused subjectively knew the risk.
  3. Accused fires the gun without thinking, not even to frighten:
  * Recklessness may not be present.
  4. Discharging the gun was an involuntary act:
  * No crime is possible.
• Alternative Offenses:
  • In cases 2 and 3, consider manslaughter due to the contentious nature of the elements.
  • Unlawful and dangerous act manslaughter or negligent manslaughter may apply.
• Pointing a Loaded Gun:
  • Even if discharging the weapon was involuntary, pointing a loaded gun at the victim could be considered the actus reus.
  • Ryan and I and Muller Williams support this argument.
  • Complexities with mens rea arise: Did the accused intend to create a risk?

Causation Explained

• Causation Steps:
  • Explain factual causation, then legal causation separately.
• Factual Causation:
  • Use the "but for" test: but for the accused's actions, would the death have occurred?
  • Describe the sequence of events leading to the result.
• Legal Causation:
  • Act must be an operating and substantial cause of death.
  • Address the legal principles for causation and apply them without excessive detail.
  • Express the principles clearly, even if streamlining isn't perfect.
• Causal Link:
  • Assess whether the causal link is strong enough to be considered substantial. This can be intuitive.
• Timing:
  • Determine if the causal connection existed continuously until the death, or if it was interrupted by an intervening event.
• Intervening Event:
  • Consider whether the intervening event was so overwhelming that the original cause of death ceased to be substantial.
• Mathematical Analysis:
  • Avoid mathematical analysis; there may be multiple substantial causes of death.

Intervening Events Explained

• Nature of Intervening Events:
  • Legal causation: The act can be a substantial operating cause of death, even if it's not the sole, main, or direct cause.
  • If an act sufficiently injured someone, leading to the need for medical attention, and that medical care was egregious, that act may be considered a substantial cause of death.
• Process to Determine Intervening Events:
  • The question is whether the intervening event accelerated the death to such a degree that the original act was no longer a substantial cause.
  • Identify if the intervening event falls into a known category, and apply the relevant test.
  • When applying the test, did the intervention influence the death?

Specific Intervening Events

• Category of Intervening Events:
  • Each type of event relies on defenses arguing that the chain of events had forked and/or broke and therefore the test had failed.
  • Types of events have developed categories over time.
• Exposure to the Elements:
  • Exposure to the sun as an intervening event: Dying due to the effects of the exposure of being left in a vulnerable position, but is it an ordinary event? (i.e. the sun rising.) Or was it such an extreme act that it was an "Act of God"?
• Victim Acts of Self Preservation:
  • When fleeing, or attempting to save themselves directly cause their death.
• Intention and Mens Rea:
  • If the accused aimed to cause the death and therefore had an extreme motive, would it then alter the mens rea after the events unfolded?
    • They had the intention initially, and therefore are still culpable.
    • Need not foreseen by the victim getting struck by a vehicle.
• Analyzing Intervention: Act of self preservation that broke the chain of events:
  • Proportionality- Was it such an extreme harm that any action would be of little consequence?
  • If such circumstance were true- the accused put the victim at immediate, provable risk and that created the need to flee.
• Standards for the Victim:
  • You cannot expect the victim to act perfectly rationally in the moment of self preservation.
  • Was the threat enough for irrational conduct (I.E Running across the road) a natural response?
• High risk is a sign to measure:
  • It helps create extreme boundaries in cases of proportional risk.
• Example of Flight: Royal
  • Fleeing the scene in a high story building (certain death) did not break the chain of events.
  • Factors to consider- Where they trapped AND what was the alternative exit?

Victim Traits

• Relevant Judgements:
  • Blaue taken into account any specific victim is not being held accountable any certain traits.
  • Victim had the right to refuse ANY treatment and the accused has been seen responsible during police chase
  • Physical or Mental characteristics need to have played any part to contribute but NOT cause the victims ill state.
• Swan:
  • Victim showed signs of physical/mental harm such as: loss of physical capability, as well as memory loss and cognition.
  • Fell months after original accident due to loss of motor/memory control related/ caused by the original harm afflicted to them!
  • The decision for treatment by the patient to not pursue further help can be deemed as related to original incident!
• Medical Treatment:
  • Due to harm caused by original incident, quality of life lowered can be used as related.

Voluntary Acts of Third Parties

• Paigeant Judgement:
  • A police chase (or intervention) does does not break chains of command!
  • Selfish reasonings such as using one as a human shield is the fault of the accused!
  • Deliberate and informed pressure of the third party is of less consideration to break the chain (under pressure from accused).

Medical Acts of Third Parties

• Medical Negligence:
  • The negligence that accelerated the medical situation has increased mortality rates and therefore will be looked at with the proper question- Was this truly caused by the accused?
  • Edmotom judgement creates such a question to look at factors within prisoner fight, and surgery.
• Intervention:
  • Even in the long run if there has been medical malpractice within the medical field, it may not hold accountable IF such intervention has not accelerated with time!
• Judgement Details:
  • Edmonton and Gardiner's failure of not identify bowel problems did not accelerate to degree to the main problem was still active.
• Smith & Malka Judgements:
  • Medical failures can be factors, but is it too late?
  • Failures of side effects do still hold blame, although the underlying would have done far more, the doctors will still be looked for their malpractice!
• Steele and Reckons Judgements:
  • On whether life support being cut (due to external/ original factors) has a standing in external situations.
• Relevance to Medical Procedure:
  • Did said medical procedure have approval from physicians? If the method was correct and followed guidelines, then that would be accountable for being properly executed!
  • Even if opinions vary, the one executed is accounted for. What does that mean?! That you must look with the right eye and know if procedures have been followed and NOT been scrutinized and therefore have accountability still to the accused.

Murder Mode

• Statutory Murder:
  • Even under common law, felony murder was just murder by statute as there wasn't proper "get-away" reasoning.
  • Mens Rea does not have factors as long as the right elements have been satisfied.
  • It exists under the reading guide but only for offenses that aren't under it to begin with (armed burglary/ robbery)

Elements of Murder Mode

• Important factors:
  • Causation should be under consideration and already factored into the equation.
  • Section 3 should be looked upon with care to go through the proper steps.

Offense Considerations

• Violence
  • Does the crime involve actions with such elements that consist of those requirements by violence? I.E Section 16 of an act that intentionally causes injury is in element which is needed BUT doesn't mean the act is violence.
• Common Practices:
  • Robbery, Aggravated Burglary and Rape BUT YOU WILL NEVER EVER HAVE TO DEAL WITH RAPE DUE TO SENSITIVE NATURE THAT NEEDS TO BE ADRESSED.

Violence

• Violence with arm or in physical form is still account for but is considered through threats for violent crimes!

Definition

• Old definition can be used but the old way-of-life has created certain caveats that no longer pertain to the ways that are now executed during sentencing.
• Fact Check can still be used:
• 1. No evidence, accused was so intoxicated that they were able to act voluntarily.
• 2. Not mentioned so no, it was only in the moment with no action of holding, stabbing was the immediate causation to the events.
• Voluntariness (Actions under the mind)
• 3. Causation is key and under inspection if there has been any foul play and outside source contributed or influenced after the initial attack that lead towards any form of long-term trauma that ended up being not worth it or a part of history. (Mis-diagnoses etc)

1. Loss of control is not causation! it will bring up other problems that are needed to explain why the mind state during the time of the incident was not proper and outside source may have contributed or influenced

• Section 310 Number 2 and 3 (In notes).
• Is Causation satisfied with all the given material?
  Initial Stab led to extreme cause of blood loose.
  What did causation require? Explain events.