lOMoAR cPSD| 54901389
FATAL OFFENCES
INCHOATE OFFENCES
PARTIES TO AN OFFENCE
CRIMINAL RESPONSBILITY: DEFENCES
PROBLEM SOLVING GUIDE
1. Did the accused kill?
a. Check meaning of kill: s 270
b. Apply s 270
i. Is the person capable of being killed?
1. Check meaning of when a person is ‘capable of being killed’:
s269
2. Apply s 269 ii. Is the person dead?
1. Check meaning of ‘death’ : s 13C Int Act
2. Apply meaning of s 13C iii. Did the accused
cause the death?
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1. Identify steps to establish causation: factual test and legal test
2. Apply factual test
3. Apply legal test
a. Determine which is best to apply
b. Determine whether there are any matters which may
break chain of causation
2. Conclude whether the accused killed the victim
3. Assess whether the accused could be liable for murder ormanslaughter
a. Check elements of murder: s 279
b. Apply elements of murder
c. Conclude whether it is a case of murder
d. Assess whether it can be a case of manslaughter
e. Does any partial excuse apply to reduce the charge from murder to
manslaughter- if not, identify how accused caused death
i. Was there an intentional infliction of force? If yes assess whether the
killing was unlawful- that is was there any authorisation, justification
or excuse
ii. If there was no intentional infliction of violence, was there a duty?
1. Identify the duty provisions and which might apply: s 262-276
2. Did the accused have a duty? If yes-
3. Did they fail to do what they reasonably could to avert harm? If
yes-
4. Were they negligent in failing to do what they could to avert
harm? If yes, the person is liable for manslaughter
5. Conclude whether it is a case of manslaughter and what the
punishment may be
FATAL OFFENCES
PROBLEM QUESTION EXAMPLE
FACTS
Brad arguing Micheal B hits M on head with vase B calls ambulance M leaves hospital
despite medical advice M returned to hospital next day M dies B says he did not intend
to kill but did intend severe injury
ANSWER
Brad could be held liable for the death of Michael if it is found that he unlawfully killed him.
According to s 277, unlawful killing is either murder (s 279) or manslaughter (s 280).
To establish either one of these offences it is necessary to prove that Brad unlawfully killed
Michael. “Killing” is defined in s 270 and requires that Brad caused the death of a person.
“Death” is defined in s 13C of the Interpretation Act (wa) to mean that there has been an
irreversible cessation of the brain functioning or blood circulation. This is unproblematic in
this case as the problem question states that Michael is dead.
CCWA s 269 a person is capable of being killed if they fully emerge in a living state from their
mother’s body. Clearly, Michael is a person capable of being killed
It must now be established that Brad caused the death of M. According to Royall v R, and
Krakouer v WA, there are two steps to establishing causation. First it must be shown that
Brad is a factual cause of Michael’s death. This is done by applying the “but-for” test. Michael
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would not be dead but-for Brad throwing a vase at his head. M is therefore a factual cause of
death. Second it must be shown that B is a legal cause of M death. This may be done by using
the operating and substantial cause test as identified in Royal V the Queen and Krakouer v
WA. In Krakouer it was stated that “It is enough to satisfy the requirement of causation for
the purpose of attributing criminal responsibility if the act of the accused makes a significant
contribution to the death of the victim.” The mean cause M receiving the injuries that
eventually led to his death was the vase being thrown at him by Brad. Brad’s behaviour is
therefore a significant cause of M death. It could be argued that Brad’s actions in leaving the
hospital against the advice of the medical staff thereby preventing him from receiving
treatment at a time that it is likely his life could have been saved, break the chain of causation
connecting Brad’s action to M death. However, s 274 make it clear that where a person has
done bodily harm to another and the victim dies it is immaterial that the death could have
been prevented by proper precaution on the part of the victim. See also R v Bingapore and R
v Blaue. Brad did bodily harm to M by throwing the vase and therefore he is liable for causing
the death even if death could have been prevented by M staying at the hospital for treatment.
It has therefore been established that Brad has killed M.
It must now be determined whether this is a case of murder of manslaughter. Murder
requires either an intention to kill or do a bodily injury that endangers or is likely to endanger
life ( s 179 (1)(a)+(b)). Brad can be found liable for murder because although he doesn’t intend
to kill he did intend to do a severe injury which suggests that he intended to do a bodily injury
likely to endanger life.
UNLAWFUL HOMOCIDE
Unlawful homicide is murder or manslaughter
S S77: Any person who unlawfully kills another is guilty of a crime which, according to the
circumstances of the case, may be murder or manslaughter’.
ELEMENTS 1)
UNLAWFUL:
- S 268: Killing a person is unlawful o ‘It is unlawful to kill any person unless such
killing is authorised or justified or excused by law’
2) KILLING -
S 270:
o Any person who causes the death of another, directly or indirectly, by any
means whatever, is deemed to have killed that other person
o Not unlawful if accused has excuse or defence
TO ESTABLISH A KILLING
1) PERSON: victim is capable of being killed
- s 269: When a child becomes a human being’
• a child becomes a person capable of being the subject of a murder of manslaughter
charge once they are born alive
• includes if the baby has not breathed, doesn’t have undefended circulation or
umbilical cord still attached
, lOMoAR cPSD| 54901389
- s 290: ‘Preventing birth of live child’
• Any person who, when a woman is about to be delivered of a child, prevents the
child from being born alive by any act or omission of such a nature that, if the child
had been born alive and had then died, he would be deemed to have unlawfully
killed the child
• Martin v R: stabbing of foetus caused blood loss to woman which caused brain
damage leading to death 7 months after born
- s 270: Death from act done at childbirth’
• When a child dies in consequence of an act done or omitted to be done by any
person before or during its birth, the person who did or omitted to do such act is
deemed to have killed the child’
2) DEATH: person is dead
- s 13C (Interpretation Act 1984)
a. irreversible cessation of all brain function or;
b. irreversible cessation of blood circulation in the person’s body
• Mansell v State of WA: no body was found, although there showed signs of
struggle (e.g blood on walls) and death of the victim and Mansell was convicted of
the killing o Don’t need body to be found for person to be convicted
3) CAUSATION: accused caused the death
Both tests must be satisfied
i. Factual test: common law
a. But-for test:
• Krakour v WA: Applicant and deceased had a fight, which another person became
involved. Applicant struck the victim and fractured his skull after the other person
had hit the deceased that had already mortally wounded victim o To be a legal
cause of death, need not be the sole cause of death FATAL OFFENCES
• Royall v The Queen: Deceased fell from window after physical argument with
husband; fell or pushed o Accused would not have fallen if argument didn’t occur
ii. Legal Test: determines whether the accused part in the death is sufficient to hold her or
him culpable
a. Common-sense test: used in simple cases when the question of cause for a decision is
not a philosophical or scientific question, but
a question of applying common sense to the facts
Campell [1981]
b. Operating and substantial cause test:
o Krakouer v WA: not the cause but a cause; victim was still alive before he
hit him
c. Natural consequence test
d. Reasonable foresight of the consequence test
s 274: Death from bodily injury that might have been avoided or prevented
e. Novus actus interveniens test: intervening act that breaks the chain of causation
• s 272: causing death by threats o victim trying to escape reasonable fear death
o Royall v R: wifes well-founded fear of husband forced spur of moment reaction
that won’t always make sensible
judgement and act irrationally
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FATAL OFFENCES
INCHOATE OFFENCES
PARTIES TO AN OFFENCE
CRIMINAL RESPONSBILITY: DEFENCES
PROBLEM SOLVING GUIDE
1. Did the accused kill?
a. Check meaning of kill: s 270
b. Apply s 270
i. Is the person capable of being killed?
1. Check meaning of when a person is ‘capable of being killed’:
s269
2. Apply s 269 ii. Is the person dead?
1. Check meaning of ‘death’ : s 13C Int Act
2. Apply meaning of s 13C iii. Did the accused
cause the death?
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1. Identify steps to establish causation: factual test and legal test
2. Apply factual test
3. Apply legal test
a. Determine which is best to apply
b. Determine whether there are any matters which may
break chain of causation
2. Conclude whether the accused killed the victim
3. Assess whether the accused could be liable for murder ormanslaughter
a. Check elements of murder: s 279
b. Apply elements of murder
c. Conclude whether it is a case of murder
d. Assess whether it can be a case of manslaughter
e. Does any partial excuse apply to reduce the charge from murder to
manslaughter- if not, identify how accused caused death
i. Was there an intentional infliction of force? If yes assess whether the
killing was unlawful- that is was there any authorisation, justification
or excuse
ii. If there was no intentional infliction of violence, was there a duty?
1. Identify the duty provisions and which might apply: s 262-276
2. Did the accused have a duty? If yes-
3. Did they fail to do what they reasonably could to avert harm? If
yes-
4. Were they negligent in failing to do what they could to avert
harm? If yes, the person is liable for manslaughter
5. Conclude whether it is a case of manslaughter and what the
punishment may be
FATAL OFFENCES
PROBLEM QUESTION EXAMPLE
FACTS
Brad arguing Micheal B hits M on head with vase B calls ambulance M leaves hospital
despite medical advice M returned to hospital next day M dies B says he did not intend
to kill but did intend severe injury
ANSWER
Brad could be held liable for the death of Michael if it is found that he unlawfully killed him.
According to s 277, unlawful killing is either murder (s 279) or manslaughter (s 280).
To establish either one of these offences it is necessary to prove that Brad unlawfully killed
Michael. “Killing” is defined in s 270 and requires that Brad caused the death of a person.
“Death” is defined in s 13C of the Interpretation Act (wa) to mean that there has been an
irreversible cessation of the brain functioning or blood circulation. This is unproblematic in
this case as the problem question states that Michael is dead.
CCWA s 269 a person is capable of being killed if they fully emerge in a living state from their
mother’s body. Clearly, Michael is a person capable of being killed
It must now be established that Brad caused the death of M. According to Royall v R, and
Krakouer v WA, there are two steps to establishing causation. First it must be shown that
Brad is a factual cause of Michael’s death. This is done by applying the “but-for” test. Michael
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would not be dead but-for Brad throwing a vase at his head. M is therefore a factual cause of
death. Second it must be shown that B is a legal cause of M death. This may be done by using
the operating and substantial cause test as identified in Royal V the Queen and Krakouer v
WA. In Krakouer it was stated that “It is enough to satisfy the requirement of causation for
the purpose of attributing criminal responsibility if the act of the accused makes a significant
contribution to the death of the victim.” The mean cause M receiving the injuries that
eventually led to his death was the vase being thrown at him by Brad. Brad’s behaviour is
therefore a significant cause of M death. It could be argued that Brad’s actions in leaving the
hospital against the advice of the medical staff thereby preventing him from receiving
treatment at a time that it is likely his life could have been saved, break the chain of causation
connecting Brad’s action to M death. However, s 274 make it clear that where a person has
done bodily harm to another and the victim dies it is immaterial that the death could have
been prevented by proper precaution on the part of the victim. See also R v Bingapore and R
v Blaue. Brad did bodily harm to M by throwing the vase and therefore he is liable for causing
the death even if death could have been prevented by M staying at the hospital for treatment.
It has therefore been established that Brad has killed M.
It must now be determined whether this is a case of murder of manslaughter. Murder
requires either an intention to kill or do a bodily injury that endangers or is likely to endanger
life ( s 179 (1)(a)+(b)). Brad can be found liable for murder because although he doesn’t intend
to kill he did intend to do a severe injury which suggests that he intended to do a bodily injury
likely to endanger life.
UNLAWFUL HOMOCIDE
Unlawful homicide is murder or manslaughter
S S77: Any person who unlawfully kills another is guilty of a crime which, according to the
circumstances of the case, may be murder or manslaughter’.
ELEMENTS 1)
UNLAWFUL:
- S 268: Killing a person is unlawful o ‘It is unlawful to kill any person unless such
killing is authorised or justified or excused by law’
2) KILLING -
S 270:
o Any person who causes the death of another, directly or indirectly, by any
means whatever, is deemed to have killed that other person
o Not unlawful if accused has excuse or defence
TO ESTABLISH A KILLING
1) PERSON: victim is capable of being killed
- s 269: When a child becomes a human being’
• a child becomes a person capable of being the subject of a murder of manslaughter
charge once they are born alive
• includes if the baby has not breathed, doesn’t have undefended circulation or
umbilical cord still attached
, lOMoAR cPSD| 54901389
- s 290: ‘Preventing birth of live child’
• Any person who, when a woman is about to be delivered of a child, prevents the
child from being born alive by any act or omission of such a nature that, if the child
had been born alive and had then died, he would be deemed to have unlawfully
killed the child
• Martin v R: stabbing of foetus caused blood loss to woman which caused brain
damage leading to death 7 months after born
- s 270: Death from act done at childbirth’
• When a child dies in consequence of an act done or omitted to be done by any
person before or during its birth, the person who did or omitted to do such act is
deemed to have killed the child’
2) DEATH: person is dead
- s 13C (Interpretation Act 1984)
a. irreversible cessation of all brain function or;
b. irreversible cessation of blood circulation in the person’s body
• Mansell v State of WA: no body was found, although there showed signs of
struggle (e.g blood on walls) and death of the victim and Mansell was convicted of
the killing o Don’t need body to be found for person to be convicted
3) CAUSATION: accused caused the death
Both tests must be satisfied
i. Factual test: common law
a. But-for test:
• Krakour v WA: Applicant and deceased had a fight, which another person became
involved. Applicant struck the victim and fractured his skull after the other person
had hit the deceased that had already mortally wounded victim o To be a legal
cause of death, need not be the sole cause of death FATAL OFFENCES
• Royall v The Queen: Deceased fell from window after physical argument with
husband; fell or pushed o Accused would not have fallen if argument didn’t occur
ii. Legal Test: determines whether the accused part in the death is sufficient to hold her or
him culpable
a. Common-sense test: used in simple cases when the question of cause for a decision is
not a philosophical or scientific question, but
a question of applying common sense to the facts
Campell [1981]
b. Operating and substantial cause test:
o Krakouer v WA: not the cause but a cause; victim was still alive before he
hit him
c. Natural consequence test
d. Reasonable foresight of the consequence test
s 274: Death from bodily injury that might have been avoided or prevented
e. Novus actus interveniens test: intervening act that breaks the chain of causation
• s 272: causing death by threats o victim trying to escape reasonable fear death
o Royall v R: wifes well-founded fear of husband forced spur of moment reaction
that won’t always make sensible
judgement and act irrationally
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