Section 18 of the New South Wales Consolidated Acts, defines Murder and manslaughter. Being charged with murder is considered very upsetting experience. However, it is of benefit for us to know what law has to say to this when you defend yourself in the court. Section 18 of the crimes Act states that a person can be said to have caused murder when the act of the person has caused the death of another person. Four situations have to be fulfilled under section 18 to cause a murder or to make the person guilty of murder. They are the following:
The criminal act of “manslaughter” takes place when the person committing the “actus reus” in a homicide but does not have the needed elements of “mens rea” to apply the liability of the murder. “Manslaughter” is a single offence but is divided down into two categories and more sub-categories. The two categories are “Voluntary and involuntary man slaughter”. In this situation it is considered voluntary manslaughter.
With the development of common law, manslaughter started to become residual category, which involves the homicide which lacks the high degree of culpability that lay down the elements of murder but lack in culpability. The two basic groups of man slaughter are differentiated in the common law, because they were regarded as one crime and had similar punishments. They are generally known as voluntary manslaughter and non-voluntary manslaughter. Voluntary manslaughter is considered to be serious crimes. The current statues have various formulas most of which depend on the understandings of the common law and refer to manslaughter even without trying to define it.
The main element of a murder is homicide with the intention to kill a person, without realising the account the circumstances. The factors that decrease the fact that it is not homicide but murder is regarded as involuntary manslaughter. The conduct is then judged by a reasonable person, then law is considered which frames all the legal and rigid rules. An murder needs the existence of an ‘intention’ being there to kill not only to cause serious bodily injuries, we can see this in the case of R v Grimwood (1962) 3 All ER 285 and in R v Walker and Hayles (1990) 90 Cr App R 226.
The difference between murder and manslaughter, the prosecution must prove all the needed doubts. In the case, Woolmington (1935) the defendant who had committed the offence had actus rea as well as mens rea that is the state for committing the crime. Murder has an ‘intention’ to kill as well as causes serious injuries. Actus rea is considered with the intention to cause murder, and it should be unlawful being the main reason of murder. There should be some evidence to take legal action. Elements like “blameworthiness, liability, and expectations” the most suitable has to be focused on. R v Pagett (1983) talks of legal substances, when the defendant had not fired the gun that had killed his girlfriend. But he was still held liable for her death. Actions do not have to be an individual cause of death as sometimes another person’s act also contributes it should only be substantial and an operating cause of the death.
The mens rea” for murder is the mental state and an essential element that is the intention to kill or cause serious injuries. Such cases show us that although there was no ‘intention to cause harm’ but he was aware of the risk relating to the harm being caused. This is considered as the most top level of “mens rea” where it differentiates the two areas of being “direct and oblique”. Direct intentions are those in which the defendant aims to achieve a goal and accomplishes it. Whereas, the oblique intention arises when the defendant has some kind of purpose in his mind, and to achieve them does certain things that were not needed. We can explain this in Nedrick (1986) case; there are objective and subjective perspectives that have been highlighted in this case. The objective side is the offender saw the victim’s death would happen and he was aware of the risk he was taking. The subjective part was that the offender saw the death as a certainty. Although there was awareness regarding the possibleness of the injury being caused the offender had no intention to cause death or any serious injury. Thus, here the intention will be considered as oblique as there was no intention to kill anyone his intention was only to scare them.
Another crucial element would be recklessness that is a serious risk, involving both the levels of subjective and objective. In case of subjective recklessness the defendant is aware of the risk yet chooses to take the risk. And in objective recklessness is when the person is sensible enough to foresee the risk. Most of us are aware of the fact that murder and manslaughter are considered as different crimes. Where both have different subcategories, murder is either in the first degree or the second degree and manslaughter is voluntary or non-voluntary. Sometimes those who understand the difference between murder and manslaughter it becomes difficult for them to distinguish it. The most difficult is when they have to conceptualize between an unintentional second degree murder and involuntary manslaughter.
The Australian Law Reform Commission, in 2004 report, “Partial Defences to Murder”, in which it was laid down that the current law was termed as ‘mess’ and was to be reviewed in relation to the law considering murder. Later it was decided that in such cases there will be review. Home Office Minister Fiona Mactaggart announced the terms that there has to be a comprehensive review in case of murder. It has been recommended that instead of the current two level structures of these offenses like murder and man slaughter, there should be three level structures like:
First degree murder is considered as unlawful killing and when committed has an intention to cause some serious harm where the offender is aware of his act. Second degree murder is when there in unlawful killing involved with the “intention to cause harm”, the killer had known of the risk he was taking. And manslaughter would consist of killing caused due to negligence and with the intention of criminal act to cause harm to another person.
The attorney general has asked the Law Reform Commission to review as well as report to them matters such as defences and partial defences. These reports and reviews involved making background checks and researches, to take in to consideration how the defences work in Australian as well as other jurisdictions and as a part of the consultation process to discuss the options for the reform.
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