Question 2 Part A

LAWS1206

Criminal Law and Procedure

Semester 1 2014
Criminal Law – Final Exam – Semester 1 2014

Distinction (76)

Question 2 Part A

Murder is defined in s 18[(1)(a)] of the Crimes Act. Each element of murder must be proved beyond reasonable doubt by the prosecution for guilt to be established – Woolmington.

Actus Reus

The actus reus for murder is the same as that for manslaughter, and can be extracted from the words of s 18 and formulated as [B1]“Conduct of the accused caused the death of a human being.” In this case, the conduct is Bruce’s repeated swinging of the heave spanner at Vaughn’s head [✓]. There are no issues arising as to whether Vaughn is a human being, nor are there any issues with the fact that he died (as it is specified in the facts). The only area which requires some attention is whether Bruce’s conduct caused Vince’s death[✓][B2]. Campbell held that in simple cases, causation is just a matter of common sense for the jury. It seems likely that this is one such case, and that a jury would find that causation is established, however it may be useful to not that the ‘substantial contribution’ test in Royall would also be satisfied, which states that there need not be a sole cause of death, only that the accused’s conduct ‘substantially contributed.’ At the time of death, Bruce’s conduct is clearly a substantial contributor to the death, and since no NAIs could be argued on the facts, it is sufficient to leave it there.[B3] Therefore, the AR for murder may be proved BRD.

There are no issues with voluntariness, partly since 428F[B4] prevents self-induced intoxication from being taken into account.

Mens Rea

The mens rea for murder takes three majour forms in s18, only one of which needs to be satisfied for guilt to be established. The first, intention to kill, will be hard to establish on the facts, and can be set aside.[B5] The remaining two are: intention to inflict grievous bodily harm (GBH) and ‘reckless indifference to human life.’ Since murder is a crime of specific intent (s 428B), intoxication is[B6]relevan[B7]t to determining mens rea – s 428C[B8]. Despite this, the level of intoxication of Bruce would not be sufficient to negate criminal responsibility, as it was not at a level which may preclude his ability to form an intention [✓].

As to intent to inflict GBH, it’s likely on the facts that this would be satisfied. Intention in He Kaw Teh was defined as “a decision to being about a situation ... to bring about an act or a particular result.” [✓] Here, the issue is whether Bruce intended to bring about the infliction[B9] of GBH. A jury would consider the circumstances surrounding the conduct and would be asked to infer intention from these. Despite Bruce’s claim that “things just got out of hand” and that he never meant any serious harm, a consideration of the circumstances shows the opposite. Bruce clearly intended to pick up the spanner[B10] and hit Vaughn. The fact that GBH would follow is so obvious that a jury would most likely be satisfied BRD that intent to inflict GBH can be inferred from these facts[B11].

No defences seem to be arguable on the facts[B12], and therefore a jury would almost definitely be satisfied BRD of Bruce’s guilt for murder under s 18 of the Crimes Act.[✓]

Question 2 Part B

While Dory did not kill Vaughn herself, or even intend Vaughn to be killed, she may be complicit in Bruce’s murder of Vaughn and liable to the same punishment.[B13] It is unlikely that she would be tried as an accessory to murder – its likely that this would fail at the mens rea stage, since murder is too far removed from the harm she anticipated, and therefore intention and knowledge of the essential matters would not be established. [✓✓][B14]Instead, Dory would be found to have participated in a joint criminal enterprise (JCE) with the purpose of teaching Vaughn a lesson[B15], and then the scope of this JCE would be extended to the murder of Vaughn under the doctrine of ‘extended JCE,’ [B16]a form of derivative liability (which raises no problems, since the original offence has already been proved for Bruce, in part A.

Is there a JCE?

Tangye set out the requirements for a JCE to exist where the accused has played a more minor role in the commission of an offence[✓]. There must first be an express or implied agreement between the parties[✓]. This can clearly be established, since Dory has offered A, B and C money to “push [Vaughn] around a bit,” “give him a bit of a touch up” and to make sure he “get[s] the message loud and clear.” There is an express agreement here between A, B, C and D to go to Vaughn’s house and beat him up (at least a little) in order to send him a message. This agreement represents a joint criminal enterprise[B17].

For Dory to be found to be participating in the JCE, Tangye requires that she be present at the scene of the crime[B18]. In this case, she was actually present, within “sight and sound” [✓] (McCarthy) so this does not pose any issues. She must also have possessed one of two mens rea formulations[✓✓], either the MR of the offence committed (probably assault occasioning ABH[B19]) or ‘Intention to assist or encourage with knowledge of the essential matters.’ It seems likely that either can be established in this case – the MR for assault occasioning ABH is simply ‘intention to use force,’ which can be inferred from her request for Vaughn to be “pushed around.” Therefore, a JCE can be found, and Dory can be proved BRD to have participated in it. [✓]

Is Dory liable for Bruce’s murder?

Extended JCE operates to extend the JCE to include acts which take place within the scope of a pre-existing JCE (McAuliffe)[B20]. A JCE has been established above, so the only issue is whether the death of V was foreseeable to D as a ‘possible incident of the pursuit of the common purpose[✓✓].” McCauliffe, from which this test is from, is somewhat analogous to this case. Three man agreed to beat up and rob someone, two brought a weapon and killed the victim, third argued unsuccessfully that lack of intent to inflict GBH precluded the finding of a JCE. In this case, that reasoning operates to find Dory liable despite a lack of intention to inflict GBH as long as the act of inflicting GBH was foreseeable as a possible incident[B21]. Her slight reluctance to go ahead with the plan when she finds out about B’s reputation shows that she did foresee GBH as a possible incident but proceeded anyway. For these reasons, it’s probably that a jury would be satisfied BRD that the JCE extends to the murder and that Dory is liable for the same punishment.[B22]

[A good answer.]

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[B1]Is this a good use of scarce time?

[B2]because a single cause?

[B3]Have you been efficient in your discussion?

[B4]wrong provision

[B5]explain, don’t just assert

[B6]maybe?

[B7]in what context?

[B8]ss?

[B9]<circled

[B10]ferocity of attack?

[B11]so, no consideration of RI 18 HL?

[B12]Overt dismissal of self-defence? Explain why not.

[B13]authority?

[B14]Good!

[B15]more specific

[B16]not entirely accurate as expressed

[B17]to do what? Assault?

[B18]you haven’t ...<indecipherable>

[B19]or common assault?

[B20]not accurate as expressed

[B21]AR + MR of murder -> both need to be foreseeable

[B22]Maybe, but what about the issue arising out of the blows causing death occurring after she called a halt to the JCE?