LAWS1206
SEMESTER 1 2000
QUESTION 1
MARK: 76
QUESTION 1(a) – mark = “17”
Don’s (D) liability for murder will turn on the prosecutions ability to make out all the elements of the offence beyond reasonable doubt (Woolmington). The major issues in this case will be whether D’s conduct led to V’s death and whether D’s possessed the relevant mens rea for the offence due to W’s state of hallucination.
The offence of murder is located in s18(1)(a) of the NSW Crimes Act and defines the Actus Reus of Murder as “causing the death charged”. Did D cause V’s death?
Causation
The Prosecution (P) must prove D cause V’s death. Generally this will be determined by a common sense approach (Campbell). D hit V over the head rendering him unconscious, causing V to sustain ‘serious injuries’ which would hav lead to death within 6 hours if not treated. As V was left for over 6 hours in this state, it is likely that he would have died as a result of the injuries caused by D, thus making out the actus reus of the murder charge.
However, V actually died of toxic gas poisoning – did this factor operate to sever the causal chain between D’s actions and V’s subsequent death? In order to answer this question, there are 3 principal tests which can be applied, all will essentially arrive at the same conclusion, however, the test which would be best applied to this fact scenario is the operating and substantial cause test (Royall). Was the original injury still the operating cause of death, or only the setting in which another cause operates? (Royall)
D’s conduce in throwing V out the window put him in the position to be exposed to the gas leak, thus it could be concluded that the defenestration was still the operating cause of death. However, medical evidence suggests that the toxic gas was the cause of death, and thus V’s position on the ground was the setting in which the gas leak operated to kill V.
Therefore, the toxic gas could be an event which breaks the causal link between D’s actions and V’s death.
Assuming that V would have died anyway from D’s actions, the prosecution must prove that the act of D was voluntary in order to attach legal consequences to it (Ryan). D was in an hallucinogenic state when he attached value to the self induced overdose of LSD> would this render his acts involuntary?
s428(6)(1) NSW Crimes Act states that self-induced intoxication with drugs or alcohol will not operate to render the acts of the accused involuntary. Thus, D’s acts would be3 considered an exercise of free will.
Mens Reas
Prosecution must prove that the accused possessed the mental state required by the offence (Paker). s18 sets out that the MR requirement of murder includes intent to kill or GBH. Whether D intended to kill or inflict GBH will be determined by the circumstances. D’s aggressive attack suggests that he wanted to inflict serious harm on V (Pemble), and would at least satisfy the requirement of intent to GBH. Failing this, s18 provides for reckless indifference to human life, which according to Royall means foresight of the probability of death.
Did D foresee the probability of death? Such an attack would probably result in death, but whether D actually foresaw this probability is questionable due to his state of intoxication.
Intoxication
D bears the evidential burden of raising the issue of intoxication as a means of negating the mental element of the crime (Woolmington). The level of intoxication must be so gross as to deny the mental state (Coleman). The level of the container suggests that given the dose of LSD D took, the hallucinogenic state would severely impair D’s ability to form intent to kill or inflict GBH.
s428(c)(i) states that intoxication may be raised by D as murder is a crime of specific intent. Given the ferocity of D’s attack on V, and the fact that D cannot remember throwing V out the window, it is clear that the drugs had a severe impact on D. Even if D were capable of forming the intent to kill or inflict GBH, the intoxicated state he was in induced him to believe that V was a ‘Gorilla’, thus any intent was based on the mistake that V was an animal, not a person.
The effect of mistake induced by intoxication would most likely prevent the prosecution from making out the MR of the offence.
QUESTION 1(b) – mark = “19”
Manslaughter
The offence of manslaughter is found in s18(1)(b) of the NSW Crimes Act. There are 2 categories of manslaughter.
Unlawful and dangerous conduct
In order to make out this offence, the prosecution must prove that the act causing the death was unlawful (Wilson). Act causing death was D’s infliction of GBH on V. the Crown must make out this offence (Lamb).
Did D perform the AR of inflicting GBH on V? GBH is defined in s4 as any “permanent or serious disfigurement”. That is clearly satisfied by the injuries V sustained.
Was the AR committed concurrently with the MR of the offence? (Fagan). MR requirement of inflicting GBH s35 is recklessness as to the foresight of the possibility of inflicting GBH. D was clearly reckless as to this possibility.
Once the unlawful act is made out, the prosecution must prove that the act was dangerous. This is satisfied by showing that the reasonable person would have recognised they were exposing the victim to an appreciable risk of serious harm (Wilson).
The ordinary person does not become intoxicated, therefore D’s state of intoxication will not be attributable to determining whether the OP would have recognised the danger (s428(F)). The OP would realise that hitting a person over the head with a chair and throwing them out a window would result in serious harm. Thus, this element of the test would be successfully made out by the prosecution. It is likely that D would be found liable of manslaughter by unlawful and dangerous act as the objectivity of the test renders his hallucinogenic state irrelevant. If it was not made out, D could be charged with…
Manslaughter by Criminal Negligence.
The prosecution must prove that the act led to the death, that it was a voluntary act and the act was negligent, ie involved a great falling short of the standard required by the reasonable person. Such that a high risk of death or GBH would follow (Rydem).
D’s act of throwing V out the window led to V’s death, provided that toxic gas does not break the chain of causation (causation issues as for murder). D’s act was voluntary as self induced intoxication doesn’t render an act involuntary: s428(U)(i). The reasonable person would not throw someone out the window and would recognize that such a grossly negligent act would probably lead to death or serious GBH.
Therefore, likely that D could be convicted on this charge provided toxic gas doesn’t break the link between his acts and V’s death.
Could D be convicted of manslaughter for leaving V on the ground covered in blood? The law doesn’t generally impose a duty to help others (Stone v Dobinson), therefore there must be a legally imposed duty on D to come to V’s aid. As a medical researcher, D would appreciate the seriousness of V’s injuries when he sees him on the ground. V is recognised by D, and there is no-one else around to help V. Arguably, a legal duty should be imposed on D to help.
Assuming there is a duty, it must be proven that duty was assumed (Stone v Dobinson). D tries to talk to V, but does not actively try to help him. Arguably, D does not do enough to assume this duty.
If D’s conduct take V aware from the possible care of others (Tak Tak), he can be taken to have assumed a duty. While D does not get help for V, he does not make it impossible for V to receive aid from others. Assuming D has adopted a duty to care for V, was he grossly negligent in regard to this duty (Stone v Dobinson). Failure to gain medical assistance may be regarded as grossly negligent. Did this negligence lead to the death (S v D). Failure to gain medical aid left V in this situation where he was suffering from injuries and exposed to toxic gas leak, which ultimately caused V’s death.
Therefore, likely that D could be convicted of manslaughter by unlawful and dangerous conduct. Conviction of MS based no crim neg by act or omission is less certain.