Murder Notes (Module 3, Unit 1)

Murder Notes (Module 3, Unit 1)

Dajanae Dawkins

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Murder  🪓

-the deliberate intention of killing of a human being without any lawful justification (or causing serious bodily harm, because who is to tell GBH would/would not lead to death)

(In some cases causing G.B.H may not lead to murder if he honestly didn’t see death, very rare though)

[MR + AR + ND = CL]

Mens rea + Actus Reus + No Defence = Criminal liability

*Burden rests on the prosecution to prove all the elements

In order for the prosecution to successfully convict a person for murder ALL the following elements must be established beyond a reasonable doubt:

1.Age:The accused must be an adult (12+)

2.Mental capacity/sound mind:The accused must have the mental capacity to commit the crime/offence (must be of sound mind)

*voluntary vs involuntary drunkenness differentiates if drunkenness can be used as a defence or not, coupled with if that was the intention or not to kill the person before getting drunk (see Involuntary/Voluntary Manslaughter and Intoxication Notes)

3.Mens rea: The accused must have the intention to kill/cause real serious bodily harm (which can possibly lead to death) (mens rea) (specific intent)

4.Actus reus: The accused must have done some physical act to cause the deceased to die or to suffer serious bodily harm (actus reus)

5.Cause of death must be the substantial one or an operating cause or the proximate cause arising from the actions of the accused (causation can’t be too remote, must be a direct connection between action and cause of death). The latin phrase ‘novus actus interviniens’ there must be nothing intervening to disrupt causation

Eg; if you run someone over and they die of high blood pressure, if the doctor says the high blood pressure was the proximate cause of the high blood pressure, you can be charged. If the car running someone over didn’t cause the high blood pressure, then you won’t be charged

*But for test

-applied in terms of causation

-eg: but for x happening, she would be alive (if it weren’t for the act, the person wouldn’t be dead, hence if the act caused the death, the defendant is liable)

-however if for eg: but for x happening, she would still have died (meaning the act didn’t cause her death, x is not liable)

-‘but for’ is the same as ‘if it weren’t for’

6.The killing must be unlawful (eg: unable to use the defence of; self-defence or a plea of insanity)

7.The accused must be a human being

***Unless the serious bodily harm results in death, it by itself isn’t murder, so if he’s still alive after I caused serious bodily harm to him, I would be charged with serious bodily harm not murder

🪓Conspiracy to murder (read further in Incohate Crimes notes)

Under actus reus, if:

*B told P to kill person A

*B hired P to kill person A

*B manipulated P to kill person A

-Even though he didn’t commit the act himself, he will still be charged for murder and CONSPIRACY TO MURDER

-Conspiracy to murder is therefore when B has the intent to kill A, but includes P to participate as well; B conspired with P to kill A

🪓Intention (applicable to all crimes as well as murder and manslaughter)

Specific intent

-any action an accused sets out to do or contemplate and takes steps to accomplish it

-A person desires a certain consequence and by his actions brings it about

-this must be proven in a number of offences: murder, burglary, theft, wounding with intent, shooting with intent

-the mens rea/intent for murder is specific

*if the person intended to cause GBH and foresaw death but didn’t intend it, its specific intent, because who is he to tell the victim would or would not die as a result? But if he didn’t foresee it its oblique

Oblique intent

-the accused person didn’t have a direct or specific intention to commit the crime and their intention was more indirect

-A person appreciates that it is a virtual certainty that (barring any unforeseen circumstances) the defendant’s action would cause death or serious bodily harm although the defendant does not desire the consequence for its own sake

-the mens rea/intent for manslaughter is oblique

-if however, they did the act and knew of virtual certainty that death could occur, but you weren’t positive, he could be charged with murder depending on the jury

case: The Queen (Reg) v Nedric

🪓Characteristics of mens rea

-mens rea is the intention to commit a crime

-it can be used interchangeably with intuition

-A person has a requisite mens rea for murder if they knowingly committed an act which was aimed at someone and which was committed to cause death or G.B.H.

-Intention can also be found if the defendant knew there was a serious risk that death or serious bodily harm will ensue from his acts and he commits those acts deliberately and without lawful excuse to expose a potential victim to that risk as the result of those acts

-In R v Cunningham; The accused must have demonstrated recklessness in whether or not harm would be done. This means that the accused must have foreseen that the particular kind of harm might be done and nevertheless went on and took the risk of doing it

(Applicable to other offenses including murder)

🪓Transfer Malice

MR (intersection sign) AR + ND=TF

(Mens Rea intersect Actus Reus plus No Defense is equal to Transfer Malice)

-if an accused has an intention to commit a criminal offense the actus reus of that offense must coincide with the same mens rea

-eg: I tried to box D, but she missed it and it hit M (mens rea is the intention to cause bodily harm to D and the box is the actus reus; thus the intention to box D ( which was transferred to M) and actually boxing coincide)

-eg: M intends to hit H with a stone, but the stone went into a window and destroyed a trophy. There is no transfer malice becuase the intention to hit a person wasn’t transferred to another person, but an object, hence mens rea and actus reus don’t coincide

-the intention to murder a person has to be transferred to another person and not an animal for it to be transfer malice, because the intention was to kill a person, but the act killed an animal instead, so there’s no intersection

-the mens rea of one crime has to coincide with the actus reus of the same crime

Cases:

R v Pembliton

R v Latimer

🪓Malice Aforethought

-its is the presence or absence of this that determines the category of the homicide; whether an unlawful killing is murder or manslaughter

-simply means an intention to kill/cause serious bodily harm

-you have the thought to commit the murder before actually committing the murder, even if it is a few secs before

-if a person was killed with malice aforethought, it is murder, but if there was none, it is involuntary manslaughter

-all that matters is that there was intention, whether oblique or specific, to commit homicide. The type of homicide is determined by the type of intent

Relevant cases on Malice Aforethought/Intention

1.Doherty case

-It was stated that “Murder is unlawful homicide with malice aforethought. Manslaughter (involuntary) is an unlawful homicide without malice aforethought”

2.Maloney case

-it was held that nothing less than intention to kill or cause grievous bodily harm qualifies as malice aforethought, merely foreseeing the death is insufficient

3.R v Vickers

-it was recognized that intention to cause grievous bodily harm was recognized as being sufficient for the element of mens rea for murder

4.R v Cunningham

🪓Causation (novus actus interveniens)

(These cases have an intervening factor that broke the direct chain of causation; the defendant wasn’t guilty of the death of the victim)

R v Jordan

R v Smith

R v Holland

R v Hayward

R v Hickman

🪓Defences available for Murder

*There are only two full defences to murder

-Self-defence

-Automatism (both insanity/insane and non-insane)

*life imprisonment (minimum years given to serve before the court considers you to parole, it's not a given but possible, unlike manslaughter its automatic)

1.Self Defence

-If a jury believes an accused person was acting in self defence, then that person would be free from murder

Elements of self defence

In order for self defence to be successful, these are the elements:

*subjective test (accused perception)

-The accused person must honestly believe that he was either under imminent attack or honestly believed that he was imminently going to be attacked

*objective test (ordinary reasonable man perspective)

-The accused person must use such force as is reasonable in all the circumstances of the case

-Don’t use excessive force when defending yourself

Circumstances where self defence arise:

*if the person is defending themselves

*if the person is defending their property

*if the person is defending their family member

*if the person is acting in a manner to prevent a crime

*if anyone in lawful authority is trying to make a lawful arrest/prevent a criminal from escaping or causing harm/detain a criminal

🪓2.Automatism

-This is an act which is done by the muscles without any control by the mind or an act done by a person who is not conscious of what they are doing

Types

*Insane Automatism/Insanity

*Non-insane Automatism

-The main difference between insane automatism and non-insane is that insane is caused by internal factors (medical) while non-insane is by external factors (non-medical)

-You did an act, but don’t know why, whether its caused by an internal or external factor determines the type of insanity

-insane automatism:not guilty on the ground of insanity (would have to go to a mental institution but not jail, so free but not)

-non-insane automatism: not guilty on the ground of automatism (you would walk through the door)

🪓2a.Insanity (internal factor) (Insane automatism)

-caused by an internal factor

-The paradigmatic authority is the M’Naughten’s case which delineates (highlights) the axiomatic tenets (principles) to establish insanity

To establish a defence on the ground of insanity it must be clearly proved that (in point form below as elements):

>At the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind; as not to know the nature and quality of the act he was doing; of if he did know it, that he did not know he was doing what was wrong'

>If the accused claims to have laboured under a delusion as to existing facts, he 'must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were true.'

The three elements that must be proven are (same as above but in element form):

*disease of the mind

*defect of reason (mental facilities not operating as though an ordinary man’s would)

*uncontrollable impulse.

*did not appreciate the nature and quality of the act he was doing (R v Codere)

*knew what you were doing but didn’t know that it was wrong according to the law

>In every case where the defence of insanity is raised, the trial judge must direct the jury that there is a presumption of sanity. This means that every person is presumed to be sane and possess a sufficient degree of reason until the contrary is proved to the satisfaction of a jury (every person is sane until proven insane)

*doing it uncontrollably/controllably and not knowing its wrong; insanity wins

*doing it uncontrollably and knowing its wrong; insanity fails

Examples of internal factors (medical conditions)

1.R v Kemp (arteriosclerosis) (explains disease of the mind and defect of reason)

2.R v Sullivan (epilepsy)

3.R v Hennessy (hyperglycaemia caused by diabetes)

4.R v Burgess (sleepwalking)

Cases

-In R v Kemp he was suffering from a disease of the mind (he lost consciousness during the act), he had a defect of reason (didn’t know what he was doing was wrong), thus insanity won

-In R v Clarke temporary absentmindedness it is not a disease of the mind (she simply forgot), thus why she was convicted

-In R v Sullivan he had a disease of the mind and a defect of reason yes, but he knew what he was doing was wrong at the time, thus insanity failed

-In R v Windle he didn’t have a disease of the mind and M’Naughten’s rule didn’t apply but he was aware what he was doing was wrong at the time thus insanity failed

-In R v Sodeman he couldn’t rely on insanity, even though M’Naughten’s rule applied in terms of uncontrollable impulse. Yet he knew what he was doing was wrong at the time

-In R v Codere he was suffering from a disease of the mind and he did the first two elements of insanity. Yet, he knew what he was doing was wrong according to law at the time, regardless of suffering from a disease. This insanity could not work

*If M’Naughten rules applied but he knew what he was doing was wrong; insanity failed

*If M’Naughten rules applied but he didn’t know what he was doing was wrong; insanity wins

*Insanity strategic plan

(1-4 is Rule of IRAC, 5 is Application of IRAC)

1.State the presumption of innocence rule (Woolmington v DPP)

2.State the presumption of sanity rule

3.State burden of proof rule

4.Cite landmark case re: insanity (case used depends on facts of the situation you’re given)

*R v Mc Naughten

*R v Kemp

*R v Sullivan

*Bratty v AG

*R v Codere

5.Explain each emblem by of insanity

Eg:

1.Everyone is presumed innocent until proven guilty

2.Everyone is presumed sane and to possess a sufficient degree of reason until proven insane

3.In every criminal case the burden of proof rests with the prosecution, however it’s different with insanity. Once a person uses the defence of insanity then the burden shifts to the accused

4.cite di case dem!

5.explain the following elements;

*In order for insanity to work it must be proven that the offence was committed the accused was labouring under a defect of reasoning

*the accused was suffering from a disease of the mind so as not to know the nature and quality of the act he was doing

*or he knew but didn’t know that it was wrong

🪓2b.Non-insane Automatism (external factor)

-caused by external factor

Examples of external factors (non-medical conditions)

1.Hill v Baxter (swarm of bees)

2.R v Quick (ingestion of a substance)

3.(a concussion)

Circumstances in which non-insane automatism would not apply

1.If the defendant voluntarily put themself in a state of automaton/was reckless in becoming automaton for a basic offence

2. intoxication (voluntary would apply but not involuntary)

Cases:

R v Clarke

Key differences between the two: