Tuesday, 3 November 2020
Criminal law lecture 5 notes
Homicide offences!
- Murder!
• Defendant intended to kill!
- Manslaughter!
• Voluntary manslaughter!
- Defendant intended to kill but had some sort of partial defence that made
them not culpable enough to constitute murder!
• Through partial defence of loss of control!
• Through partial defence of diminished responsibility !
• Through a suicide pact!
• Involuntary manslaughter!
- Prosecution unable to establish mens rea to kill - not murder!
• Through an unlawful and dangerous act!
• Through gross negligence!
• Recklessness!
1
, Tuesday, 3 November 2020
Stake - murder sentencing!
• Murder (Abolition of Death Penalty) Act 1965!
- Mandatory life sentence !
• Criminal Justice Act 2003!
- Starting point for minimum periods served in prison before eligible for release
(12, 15, 25, 30 or whole life)!
- Varies by seriousness of the murder - double or more murder, abduction,
sexual assault, terrorism etc!
- After minimum term can be released on parole but on life license - breach of
license leads to recall of prisoner to prison!
• Existence of mandatory sentence has shaped the substantive law of murder
and manslaughter !
- Varying context of murder - sadistic killer v mercy killing v killing of abuser etc!
- Too indiscriminate - calls for discretionary sentencing framework!
Definition of murder!
- Common law offence - no statutory definition of murder!
• Case law established following 4 requirements!
- The victim was a person!
- The victim died!
- The defendant was the cause of the victim’s death!
- The defendant intended to kill the victim or cause the victim to suffer
grievous bodily harm!
- (1) Victim was a person!
• When does a foetus become a person/being? - can be victim of offence of
murder!
- Attorney-General’s Reference (No 3 of 1994)!
• For foetus to become a person and being !
- Whole body of the child must emerge into the world and sustain an
existence independently separate from that of the mother for however
brief a period of time!
2
Criminal law lecture 5 notes
Homicide offences!
- Murder!
• Defendant intended to kill!
- Manslaughter!
• Voluntary manslaughter!
- Defendant intended to kill but had some sort of partial defence that made
them not culpable enough to constitute murder!
• Through partial defence of loss of control!
• Through partial defence of diminished responsibility !
• Through a suicide pact!
• Involuntary manslaughter!
- Prosecution unable to establish mens rea to kill - not murder!
• Through an unlawful and dangerous act!
• Through gross negligence!
• Recklessness!
1
, Tuesday, 3 November 2020
Stake - murder sentencing!
• Murder (Abolition of Death Penalty) Act 1965!
- Mandatory life sentence !
• Criminal Justice Act 2003!
- Starting point for minimum periods served in prison before eligible for release
(12, 15, 25, 30 or whole life)!
- Varies by seriousness of the murder - double or more murder, abduction,
sexual assault, terrorism etc!
- After minimum term can be released on parole but on life license - breach of
license leads to recall of prisoner to prison!
• Existence of mandatory sentence has shaped the substantive law of murder
and manslaughter !
- Varying context of murder - sadistic killer v mercy killing v killing of abuser etc!
- Too indiscriminate - calls for discretionary sentencing framework!
Definition of murder!
- Common law offence - no statutory definition of murder!
• Case law established following 4 requirements!
- The victim was a person!
- The victim died!
- The defendant was the cause of the victim’s death!
- The defendant intended to kill the victim or cause the victim to suffer
grievous bodily harm!
- (1) Victim was a person!
• When does a foetus become a person/being? - can be victim of offence of
murder!
- Attorney-General’s Reference (No 3 of 1994)!
• For foetus to become a person and being !
- Whole body of the child must emerge into the world and sustain an
existence independently separate from that of the mother for however
brief a period of time!
2
