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69 Cards in this Set
- Front
- Back
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s 291 CC ?
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"It is unlawful to kill any person unless killing is authorised or justified or excused by law."
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What are the 3 elements of 'unlawful killing'?
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1) Any person
2) Without authority, justification or excuse 3) Kills |
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Define: "Any Person" s 291 CC
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A child fully proceeded from mother's body alive = capable of being killed, irrelavent if the baby has:
> breathed > independent circulation > is still attached by umbilical cord s 292 CC |
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Can an unborn baby be "killed"?
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Yes! If a person does/omits something towards pregnant woman which prevents the child from being born alive.
s 313 CC * Does not apply to life-saving operation on mother s 282 CC |
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Define: "Without authority, jusitification, or excuse" s 291 CC
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Unlawful!
Authorised = subject to prior approval in Legislation or common law > Police can use lethal force s 616(4) PPRA Justified/Excused = Act/omission causing death is not expressly authorised but cirumtances excuse responsibility (e.g. self-defence) |
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Define: "Kills" s 291 CC
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Causing the death directly or indirectly by any means whatsoever
s 293 CC |
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Define: "Dead"
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"Irreversible cessation of circulation of blood in body of person OR irreversible cessation of all function of the brain of the person"
Transplantation and Anatomy Act 1979 (Qld) |
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Is a body required for the accused to be charged with unlawful killing?
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No! If evidence leaves no room for reasonable doubt that the victim is dead.
"No rational hypothesis other than muder." R V HORRY |
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Besides the three elements of 'unlawful killing', what must be established?
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Causation!
Prove what the accused did (or failed to do) directly OR indirectly caused the person's death. s 293 CC |
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Causation - What is the question of law and who decides it?
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Are the acts/omissions capable of constituting causation?
Determined by the judge. |
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Causation - What is the question of fact and who decides it?
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Are the acts/omissions actually committed capable of constituting causation?
Determined by jury. |
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4 tests to establish causation?
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1) 'But for' test
2) 'Common sense/natural consequences' test 3) 'Reasonable foreseeability' test 4) 'Substantial contribution' test |
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'But for' test?
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Would the death of the victim have occured 'but for' the actions of the accused?
KRAKOUER V WA |
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'Common sense/natural consequence' test?
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Use common sense to determine if the accused's act was sufficient to show factual causation?
ROYALL V THE QUEEN |
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'Reasonable foreseeability' test?
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Would a reasonable person in those circumstances forsee the likely consequences of those actions?
KAPORONOVSKI |
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'Substantial contribution' test?
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Was the act or omission an 'operating and substantial cause' of the consequences?
ROYALL V THE QUEEN |
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What does KRAKOUER V WESTERN AUSTRALIA say about the 'substantial contribution' test?
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The act or omission does not need to be the sole or even the main cause - must simply contribute in a 'not insignificant' way!
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"Substantial"?
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The law is not concerned with trivial matters.
'de minimis non curat lex' |
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How can causation be challenged?
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Determine if there has been a new intervening act which seperates the act from the outcome.
'novus actus interveniens' |
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Can a third party break the chain of causation?
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Only if the act of the third party is so independent of the accused that is becomes the SOLE cause of death.
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What is an 'independent act' by a third party?
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A voluntary act by the third party not done for 'reasonable' reasons - i.e. not out of self-preservation or legal duty.
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If a victim could have lived if given medical treatment, will this break causation?
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No! Whether they could have been saved by taking precautions or receiving treatment is immaterial.
s 297 CC |
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If a victim refuses medical treatment, will this break causation?
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No! The accused takes the victim as they find them (which includes their moral, religious, etc. traits which caused them to refuse treatment)
BLAUE |
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When can a person be charged with criminal negligence against a victim?
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Only if they have a duty to help them!
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If an accused has a duty to help someone, to what extent must they?
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Not everything possible only what can reasonably be done.
R V CLARK |
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4 duties under Chapter 27 CC?
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1) Duty to provide necessaries
2) Duty of persons doing dangerous acts 3) Duty of persons in charge of dangerous things 4) Duty to do certain acts |
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Duty to provide necessaries?
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Person must provide necessaries of life for anyone they have taken into their care who cannot remove themselves from that care AND who cannot care for themselves
s 285 CC |
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What are the "necessaries of life"?
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What a person needs to survive - i.e. food, shelter, medical aid and remedies
R V MACDONALDS AND MACDONALD |
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Person with care of child under 16 must provide necessaries of life under what CC section?
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s 286 CC
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Duty of person doing dangerous actions?
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Person doing anything dangerous to human life (including surgery) must:
> Have reasonable skill, AND > Use reasonable care to ensure other's life is not endangered s 288 CC |
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Duty of persons in charge of dangerous things?
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Person in charge of dangerous things (animate or inanimate) must take precautions to ensure other's lives are no endangered.
s 289 CC |
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Duty to do certain acts?
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If a certain act must be done to avoid death/injury to others - the person undertaking that act has duty to do that act and will be responsible for any consequences resulting from their lack of performance.
s 290 CC |
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If causation is established, what two charges can follow?
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Murder or manslaughter depending on the circumstances.
s 300 CC |
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'Murder' falls under what CC section?
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s 302 CC
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s 302(1)(a)?
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Offender intends to inflict GBH or kill = murder.
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s 302(1)(b)?
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Death occurs as the result of dangerous act likely to endanger life done in prosecution of unlawful purpose = murder.
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"Prosecution of unlawful purpose"? Does it matter they didn't intend to harm?
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"furtherance of, pursuance of, for the purpose of"
No! Does not matter if they intended the harm. s 302(3) CC |
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An act "likely"...?
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Substantial, real, and not remote chance of result occuring.
R V HIND |
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"Dangerous"?
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*Objective Test*
Would a reasonable person in the same circumstances have recognised their was a real chance the act could endanger life? STUART V THE QUEEN |
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Can the dangerous act = the unlawful purpose?
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No! There must be an unlawful purpose further than just the dangerous act.
HUGHES V THE KING |
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s 302(1)(c)?
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Person intends to do GBH for purpose of facilitating commission of an offence OR their escape after an offence = murder.
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s 302(1)(d)?
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Death occurs as a result of drugging a victim in the course of an offence OR to aid their escape = murder.
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s 302(1)(e)?
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Death occurs by willfully stopping the breath of a person in the course of an offence OR to aid their escape = murder.
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"Intention to kill"?
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Either directly or indirectly intending the outcome.
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"Direct intention"?
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Person has purpose or desire to bring result.
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"Indirect intention"?
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Person knows or foresees that a certain outcome is virtually certain.
THE QUEEN V CRABBE |
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"Outcome is virtually certain"?
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The outcome must be highly probable NOT just foreseeable.
R V WILMOT |
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If the death occured in a different manner than intended, has the offender still committed murder?
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Yes! Offender still had intent so still liable for muder.
THABO MELI |
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If X intends to kill Y but kills Z - did X commit murder?
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Yes! Offender still has intent so still liable for muder.
s 302(2) CC |
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What offence falls under s 306 CC?
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a) A person unlawfully attempts to kill another
b) A person, with the intention to kill, does/omits to do an act it is their DUTY to perform where the likely outcome endangers human life |
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What three things must be shown to establish "attempted murder"?
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a) Intention
b) Begins to execute intention by overt act indicating intent OR act more than merely prepatory c) Does not fulfil intention so as to commit the offence s 4CC |
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Define "manslaughter"?
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Unlawful killing under such circumstances as NOT to constitute murder (under s 302CC) = manslaughter.
s 303 CC |
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Is intention necessary?
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No! Intention not an element of manslaughter.
s 303CC |
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If the offender is indicted on murder, can they be convicted of manslaughter?
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Yes! Can be convicted of lesser charge.
s 576(1) CC |
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If the offender is indicted on manslaughter, can they be convicted of murder?
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No! Cannot be convicted of greater charge.
s 576(2) CC |
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Manslaughter is mainly charged in what 2 situtations?
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1) Elements of muder established BUT partial excuse/defence reduces to manslaughter
2) Elements of murder NOT established but killing was still unlwaful/not excused |
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'Intentional act' manslaughter?
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Intentionally applying force to victim which leads to death (without any defence or excuse).
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Define "Egg-shell skull" rule?
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Offender takes the victim as they find them.
R V STEINDL |
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'Negligent' manslaughter?
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No intentional force applied to victim SO offender must have owed some duty to prevent harm to victim.
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Define "negligence"?
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Performance that falls substantially below behaviour expected of a reasonable person.
CALLAGHAN V THE QUEEN |
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Punishment for murder?
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> Life imprisonment (cannot be mitigated or varied under any Act)
OR > Indefinite sentence (pt 10 Penalties and Sentences Act 1992) s 305(1) CC |
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Offender is convicted of murder under s 305(2) CC - what factors exist and what is 'life imprisonment'?
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Offender has committed more then one murder OR previously convicted of murder.
Parole eligible the day after serving 30 years (or longer time under CC section). s 181(2)(a) Corrective Services Act 2006 (Qld) |
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Offender is convicted of murder under s 305(4) CC - what is 'life imprisonment'?
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Offender has murdered a police office OR made act/omission leading to the death of police officer.
Parole eligible the day after serving 25 years (or longer time under CC section). s 181(2)(b) Corrective Services Act 2006 (Qld) |
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If not murder under s 304(2) or (4) - what is 'life imprisonment'?
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Parole eligible the day after serving 15 years (or longer time under CC section).
s 181(2)(d) Corrective Services Act 2006 (Qld) |
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"Indefinite sentence"?
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Court may impose indefinite sentence on own initiative or on counsel application.
s 163 Penalties and Sentences Act 1992 (Qld) |
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What must court be satisfied of before applying indefinite sentence?
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(a) Have not been referred to Mental Health Court (for mental health issue)
(b) Offender is a serious danger to the community - based on their behaviour, severity of offences, and special circumstances. s 163(2) Penalties and Sentences Act 1992 (Qld) |
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Define "serious danger to the community"?
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Court will consider:
(a) Exceptional nature of offence (b) Age and character of offender (c) Medical or prison records (d) Risk of serious harm to community w/o indefinite sentence (e) Need to protect the community s 163(3) Penalties and Sentences Act 1992 (Qld) |
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Maximum punishment for 'attempted murder'?
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Life imprisonment.
s 310 CC |
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Maximum punishment for 'manslaughter'?
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Life imprisonment (but NOT mandatory).
s 310 CC |
