Criminal Law

Homicide

Unlawful homicide is divided into murder, manslaughter, infanticide, criminal negligence and culpable driving. Then there are lawful forms of homicide, such as killing in pursuit of military service.

Murder

Murder is killing, either intentionally or recklessly, or the infliction of bodily harm with death resulting. It can be done either by commission or omission.

The causal chain between the defendant’s action and the resulting death is not broken just because there were other contributing factors. An act of violence leading to death is sufficient grounds on which to base a charge of murder even if, for instance, the victim refused medical treatment, or if medical treatment was given improperly.

The intentionality underlying a homicide is these days seen as divided into four different categories. An intention to kill is the primary form of intention involved in a murder. The defendant must have a desire to kill and foresight that their course of conduct will result in death.[1] The prosecution must prove both of these elements to establish the mens rea necessary for murder. Furthermore, even if a reasonable person in the defendant’s position would have foreseen the risk of death, it is necessary to prove the defendant him/herself foresaw the risk. See, for example, Smith.[2]

 

 

 

[1] Vallance v The Queen [1961] 108 CLR 56.

[2] DPP v Smith [1961] AC 290.

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