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Criminal Law I
Criminal liability is placed on rational beings; therefore children under 10 and the mentally
impaired are excluded. Children require special treatment at the trial stage so as to ensure a
fair trial since they are not capable of properly informing their lawyers to establish an
adequate defence (R v Secretary of State for the Home Department; Ex Parte Venables).
However there may be separate punishments despite the finding of not guilty, e.g. mentally ill
individuals are placed in psychiatric hospitals rather than prisons.

In addition, criminal liability requires both a guilty act (actus reus) and guilty mind (mens
rea). This focuses attention on the physical conduct and state of mind of the defendant.
A child over 14 is tried as an adult in Australia however there is leeway as to the standard of
behaviour expected (Stingel v the Queen). Between 7-14, a common law presumption arises
that a child is incapable of wrongdoing – however this presumption is rebuttable with
reference to the nature of the offence and circumstances. The prosecution must prove that the
child knew the offence was wrong rather than just naughty or mischievous.

Corporations
A corporation is a legal person and may be criminally liable to the same extent as a natural
person. The main restriction to this principle is that at common law a corporation cannot be
tried for an offence which can only be punished by imprisonment. However s 16 of the
Crimes (Sentencing Procedure) Act 1999 (NSW) allows for conversion of terms of
imprisonment into fines and this removes the obstacles to holding corporations liable.
There are 3 ways to hold corporations liable:
 vicarious liability
 direct liability: for the acts of its Board of Directors or Managing Director
 corporate culture: Liability for offences authorised through its procedures

The role of criminal law

The purposes: Retribution; Deterrence; Rehabilitation; Incapacitation

Duty to act positively: Four situations identified in R v Taktak:

• Where statute imposes a duty to care for another
• Where status relationship to another
• Where assumed contractual duty to care
• Where voluntary assumption of duty of care: Taktak: in response to a telephone
request, A took an unconscious prostitute back to his flat. This was an assumption of a
duty of care which meant T was then under a duty to summon medical help. By taking
the woman back to the flat, he removed her from where others could have helped.

Elements of crime
Physical element (actus reus) of crime includes:

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1. Voluntary1 conduct – either an act, omission, or state of affairs

2. The conduct in specified circumstances, e.g. rape must possess the circumstance of
lack of consent on the part of the victim
3. Causal link between conduct and criminal outcome (e.g. death)2. If an act of nature,
an act of the victim3 or the act of a third party4 breaks the chain of causation, this may
absolve the defendant of liability.

Mental/fault element of a crime (mens rea) can be either

1. Subjective – prosecution must prove beyond reasonable doubt that the accused
possessed the requisite state of mind. In the absence of a confession, this is done by
attributing a state based on the accused’s behaviour, experiences and characteristics.
a. Intention: that the accused intended to bring about the physical element of the
offence. Basic intent relates to conduct; specific intent relates to consequences.
He Kaw The v The Queen: Direct intention ‘connotes a decision to bring about a
situation so far as it is possible to do so – to bring about an act of a particular kind
or a particular result’.
Oblique intention: where the outcome of the accused’s conduct isn’t directly
related to his intention, but emerges indirectly as the consequence of that conduct.
Courts have held that there is no difference in the two; if it’s probable someone
will die as a consequence of your action, then you had intent to murder (Hyam v
DPP). The court definition overlaps with recklessness

Transferred intention: where accused intends a particular crime and commits the physical
element of the crime but with a different victim to the one they had in mind, they are still
criminally responsible – but only for manslaughter (Attorney-General’s Reference (No. 3 of
1994)

b. Knowledge: criminally responsible if acts with knowledge that a particular

circumstance exists or a particular consequence will result from conduct.
Knowledge doesn’t mean imputed knowledge. In some jurisdictions, mistaken
belief is a defence.

1
Voluntariness excludes accidents, reflex actions and automatism (when the defendant was in a state of
impaired consciousness).
2
This is a question of fact reserved for the jury. The three objective tests to determine causation are: 1. The
reasonable foreseeability test 2. the substantial cause test and 3. the natural consequence test (favoured by 3 out
of 7 judges in Royall v The Queen (1991) 172 CLR 378). In rare cases, intention of the accused can be relevant
to determining the causal chain of events (e.g. where the defendant is aware of a phobia that would lead to an
adverse reaction on the part of the victim, e.g. the defendant knows the victim is scared of spiders).
3
There are 3 types of acts by the victim that may break the chain of causation: 1. Where a victim is killed while
seeking to escape the violence of the accused 2. Where a victim failed to take medical advice 3. Where a victim
commits suicide after being assaulted.
4
The intervention of a third party will only break the chain of causation where intervention was free, deliberate
and informed (R v Pagett). It is only in exceptional cases that medical treatment, even if given negligently, will
break the chain of causation. The treatment given must have been palpably wrong for the injury (R v Jordan).

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Wilful blindness: Defendant can be deemed to possess the requisite knowledge if

he deliberately refrained from making inquiries for fear of learning the truth.
However courts in Australia have been reluctant to equate this with actual
knowledge (Kural v The Queen). It is however, evidence that can be used to infer
intention.

c. Recklessness: may be made out where the chances of causing a result are high,
but the defendant didn’t purposely want the result or consequence R v G
(2004, UKHL). The fact that a person SHOULD have been aware of a risk
does not make them reckless if, in fact, they were not. However, a person who
was not aware of an obvious risk may well be negligent (see below)

Mick Philpott case: Philpott actually believed it was possible to achieve his goal
and rescue the children. It was essential to his plan that the children would be
rescued. The charge of murder was dropped before the trial and he was tried for
(and convicted of) manslaughter. The basis of the manslaughter charge was either
that he did an unlawful and dangerous act which resulted in the deaths or that he
was negligent (it doesn’t really matter which).

2. Objective
a. Recklessness

b. Negligence: Negligence is not a positive state of mind – different from

intention, knowledge, recklessness. A person who is negligent FAILS to think
about the consequences of their actions or FAILS to take sufficient care when
performing an act that might result in harm to others. Negligence is the fault
requirement for a lot of ‘regulatory’ offences but of the ‘true crimes’ only
manslaughter has a mens rea of negligence and it has to be gross negligence.

Motive: if proven, motive is a matter from which a jury might properly infer intention and in
every case is relevant to the question whether the accused committed the offence charged (De
Gruchy v R, HCA, 2002). For the defence to have succeeded in De Gruchy they should have
proven the absence of a motive – rather than just relying on Prosecution’s failure to prove
motive. Prosecution is not obliged to prove lack of a motive.
However note Kirby J who expresses ‘a sense of unease’ at the imbalanced direction of the
judge direction to the jury on motive; he prefers that a jury also be told that the P’s failure to
prove motive may be a factor weighing in the defendant’s favour. However there’s no
material misdirection, as legally it is not necessary to be balanced on the issue of motive.

Strict liability offences require no fault element – it is enough to show that accused has done
it (though a defence might be that you made an honest and reasonable mistake of fact). This
covers driving offences like speeding.
Defence of honest and reasonable mistake of fact (HRMF):

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1. there must be a mistake5 and not mere ignorance (Proudman v Dayman)

2. the mistake must be one of fact6 and not of law
3. the mistake must be honest and reasonable7
4. the mistake must render the accused’s act innocent8
He Kaw The v R (1985) 157 CLR 523 per Gibbs CJ: ‘I should say immediately that if
s 233B(1)(b) does not require the prosecution to prove guilty knowledge, but has the
effect that an accused is entitled to be acquitted if he acted with the honest and
reasonable belief that his baggage contained no narcotic goods, in my opinion the
onus of proving the absence of any such belief lies on the prosecution… provided
there is evidence which raises the question the jury cannot convict…’
Obiter in Allen v United Carpet Mills Pty Ltd [1989] VR 323 suggests a defence of
‘taking all reasonable care and diligence’ could be subsumed within HRMF.

Absolute liability requires no fault element, and no defence of mistaken fact will help a
defendant. This is applied in primarily regulatory offences
Mistake of law defence: generally cannot be relied on, apart from 4 exceptions:
1. knowledge of unlawfulness as a fault element
2. the defence of claim of right
3. the non-discoverability of laws
4. the statutory defence of ‘with lawful excuse’

MURDER
CRIMES ACT 1900 (NSW)
S18: Murder shall be taken to have been committed where:
 an act or omission of the accused
 causing
 the death charged
 was done or omitted with:
reckless indifference to human life;
or with intent to kill;
or inflict grievous bodily harm upon some person;
or done in an attempt to commit, or during or immediately after the commission, by
the accused, or some accomplice with him or her, of a crime punishable by
imprisonment for life or for 25 years.
Every other punishable homicide shall be taken to be manslaughter.
No act or omission which was not malicious, or for which the accused had lawful cause or

5
That is, the D must have considered whether or not the facts existed.
6
This should be a mistake of present fact, not future events (R v McCullough).
7
In Mayer v Marchant the act of a third party in providing unusually dense distillate caused the D’s tanker to
become overweight and liable to a penalty. However 18 months previously, the D had made reasonable inquiries
into the appropriate gallons of distillate and its corresponding weight. The court acquitted him on the grounds
that the accused had a general belief that a certain quantity of gallons would produce a load of certain weight
and that this was an honest and reasonable belief.
8
That is, had those facts existed, the D’s conduct would not have constituted an offence.

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excuse, shall be murder.

No punishment or forfeiture shall be incurred by any person who kills another by misfortune
only.

S19: (1) A person who commits the crime of murder is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for the crime of murder is to serve that
sentence for the term of the person’s natural life.
(3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing
Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment
for life). ..
(6) Nothing in this section affects the prerogative of mercy.

1. Act or omission
the particular act does not have to be identified in all circumstances: R v PL (2009) 261 ALR
365. Omission can be murder or manslaughter if accused owes special duty of care.

Ryan v R (1967) 121 CLR 205: The defendant argued that the pulling of the trigger was the
act that caused death but it wasn’t his act, it was mere accident. However D admits the gun
didn’t bump into anything or anyone and discharge in that way.
Four possible explanations:
(1) the gun was fired intentionally and with the intent to harm the deceased;
(2) the gun was fired in order to frighten the deceased;
(3) the trigger was pressed in a panic with no intent either to harm or to frighten;
(4) the trigger was pressed ‘in a reflex or convulsive, unwilled movement of his hand or
of its muscles’.
Taylor & Owen JJ: ‘the fact is that the wounding and death were caused by a combination of
acts done in pursuance of the design to commit the robbery. They included the loading and
cocking of the rifle, the failure to apply the safety catch, the presentation of the rifle at Taylor
with the finger of the applicant on the trigger in circumstances in which an attempt at
resistance might well have been expected. No suggestion was or could be made that these
acts were involuntary. They were done deliberately and were as much part of the act causing
death as was the pressure of the trigger which fired the rifle. It is impossible to isolate the act
of pressing the trigger from the other circumstances and argue that it, alone, caused the
wounding and death’

2. Causation
Act (or omission) of the accused need not be the sole cause, but a ‘substantial or significant
cause’ (Royall, Deane & Dawson JJ)

Royall v R (1991) 172 CLR 378: If V jumps in order to escape A, does A cause V’s death?
The fact that V’s death occurred in a way that A did not foresee does not prevent us from
saying A caused V’s death. Well-established that there is sufficient causation if A caused V
such fear that trying to escape was a ‘natural consequence’ of A’s actions. The fact that V’s

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conduct was unreasonable does not mean it should be regarded as breaking chain of
causation: ‘Persons subjected to violence of the threat of violence do not always think
rationally or act reasonably’. Suicide does not necessarily ‘break the chain’. (McHugh J)
However there is a protection for A against a bizarre overreaction: must also establish that A
had the required state of mind to be convicted of the offence.

Examples that DO NOT break the chain of causation

 Disconnection of life support, on medical recommendation: R v Kinash (1981) 5 A
Crim R 240
 Deceased was stabbed by another prisoner and needed surgery to his bowel. He
appeared to have recovered but later died of a bowel obstruction caused by adhesions
at the site of the earlier surgery: Evans & Gardiner (No 2) [1976] VR 523
 Deceased was assaulted and then left, unconscious, on the beach. He drowned when
the tide came up: Hallett [1969] SASR 141
 Deceased was already ill and had increased susceptibility to death from injuries that
another person might survive: Moffatt [2000] NSWCCA 174

3. Death

A child must be born alive before s/he can be murdered:

Crimes Act 1900 (NSW) s 20 – ‘On the trial of a person for the murder of a child, such
child shall be held to have been born alive if it has breathed, and has been wholly born
into the world whether it has had an independent circulation or not’.

Injuries inflicted in utero can lead to conviction if the child is ‘born alive’ but then dies.

Ss 82-84 Crimes Act creates a lesser offence of infanticide – it is not murder to kill an unborn
foetus as the law does not recognize the foetus as a life in being: Tait [1990] 1 QB 290
The legal definition of death: Human Tissue Act 1983 (NSW) s33: a person has died when
there has occurred: irreversible cessation of all function of the person’s brain; or irreversible
cessation of circulation of blood in the person’s body. It’s possible to prove death by
circumstantial evidence where no body is found: Shepherd (1990) 170 CLR 573.

For unlawful killing other than murder – i.e. manslaughter - no requirement that child must
have breathed to be born alive (R v Ilby [2005] NSWCCA 178).

4. Additional elements required

Reckless indifference
This is subjective not objective test – it is not sufficient that a reasonable person would have
foreseen the probability of the occurrence being the death of another.

Older cases like R v Crabbe (1985) say a person is guilty of murder if he commits a fatal act
knowing that it will probably cause death or grievous bodily harm. However in NSW the test

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is more stringent. A person has to know it will probably cause death, not that it will probably
cause GBH. That is, foreseeing GBH is not sufficient – an accused needs to foresee death (s
18 Crimes Act and also R v Solomon, 1979, NSW Court of Criminal Appeal).

However see ‘Intent to cause GBH’ below as this is another head under which murder can be
made out. Also cases like R v Hancock and Shankland (1985) overlap with recklessness.
In R v Hancock the appellants were miners on strike. They apparently wanted to block the
road to the mine to prevent works breaking the picket line. They had dropped lumps of
concrete and a post from a bridge on to the carriageway below as the convoy of workers
approached. The taxi was struck by two lumps of concrete resulting in death of the driver.
The prosecution contended that the appellants conduct meant that they intended nothing less
than serious bodily harm. The appellants argued they only intended to block the road and no
harm was intended to result from the actions. A murder conviction was upheld.

Intent to kill
A person intends a result if they want or desire it to happen (the opposite of an accident). You
cannot intend something if you do not believe it will happen. It is not relevant whether the
result was likely or unlikely to occur (you can intend the impossible). Intention isn’t the same
thing as motive (eg, ‘mercy killing’, crimes committed as a political statement). Intention
does not require premeditation.

In practice motive and probability may still be important when it comes to proving intention

OBLIQUE (INDIRECT) INTENTION CASES

Foreseeing consequences is not the same as intent. The bar to find intent is a high one.

THE VIRTUAL CERTAINTY TEST in R v Nedrick (1986): The appellant held a grudge against
Viola Foreshaw. He went to her house in the middle of the night poured paraffin through her
letter box and set light to it. A child died in the fire. Appellant acquitted, found guilty of
manslaughter instead of murder. Intent may be inferred if the following conditions are jointly
satisfied:
1. The result was a virtual certain consequence of an actor's conduct, and
2. The actor knows that it is a virtually certain consequence

A similar result in R v Moloney where the defendant was acquitted of murder (but convicted
of manslaughter) because the facts were such that the House of Lords felt that the intent was
not to kill (the D had been trying to win a competition over who could load and shoot a gun
quickest with his stepfather). A two step test: First, was death or really serious injury in a
murder case a natural consequence of the defendant’s act? Secondly, did the defendant
foresee that consequence as being a natural consequence of his act? If you answer yes to both
questions it is a proper inference to draw that he intended that consequence.

Intent to inflict grievous bodily harm

Crimes Act 1900 (NSW), s 4: GBH includes:

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(a) the destruction (other than in the course of a medical procedure) of the foetus
of a pregnant woman, whether or not the woman suffers any other harm, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease (in which case a reference to the infliction
of grievous bodily harm includes a reference to causing a person to contract a
grievous bodily disease)

In an attempt to commit a crime punishable by life or 25 years

No specific fault element required other than the fault element necessary to establish guilt of
the ‘base’ offence. See Ryan v R above.

5. Concurrence in time
Finally, all the physical and mental elements must occur at the same time or be part of the
same continuing act: R v Thabo Meli (1954).

MANSLAUGHTER

Physical elements are the same as murder, except for the test as for when a child is born alive.

I. Voluntary Manslaughter

1. Provocation
The defence can be raised only in a trial for a murder charge.
Crimes Act s 23 Trial for murder—partial defence of extreme provocation
(1) If, on the trial of a person for murder, it appears that the act causing death was in
response to extreme provocation and, but for this section and the provocation, the
jury would have found the accused guilty of murder, the jury is to acquit the accused
of murder and find the accused guilty of manslaughter.
(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the
deceased towards or affecting the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased could have caused an ordinary person to lose
self-control to the extent of intending to kill or inflict grievous bodily harm on
the deceased.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence against
the deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did
not occur immediately before the act causing death.
(5) For the purpose of determining whether an act causing death was in response to

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extreme provocation, evidence of self-induced intoxication of the accused (within the

meaning of Part 11A) cannot be taken into account.
“Serious indictable offence” means an indictable offence that is punishable by imprisonment
for life or for a term of 5 years or more’ (s 4)
TEST LIMB 1: Was the act/omission the result of a loss of self control on the part of
the accused that was induced by any conduct of the deceased (including grossly
insulting words or gestures) towards or affecting the accused? [if D raises evidence
of provocation, burden shifts to prosecution to prove that accused didn’t lose control]

NSW Court of Criminal Appeal case of Chhay (1994) 72 A Crim R 1: Chhay slit her abusive
husband’s throat and attacked him with a meat cleaver. Appealed her conviction for murder.
Held: Appeal allowed.
 Need to look at words or conduct as a whole. This means consider the history of
relationship in cases such as this one involving domestic violence.
 As a factual matter, the longer the time that passes between the provocation and the
loss of control, the ‘more difficult it will usually be to attribute the actions of the
accused to loss of self-control rather than, for example, the deliberate and cold-
blooded implementation of a desire for revenge’ (per Gleeson CJ).
 Loss of control could be the result of anger, or other emotions such as fear or panic
(eg, an overreaction in a self-defence scenario)

English case of Morhall: How hurtful conduct is, especially when words are involved, is
affected by matters such as age, sex, ethnic background, physical features, personal history,
etc. In Morhall the defendant was taunted with being unable to give up glue sniffing and it
was relevant that he was a glue sniffer.

Bedder – impotent man taunted by prostitute. It wasn’t enough that the provocation caused
this person to lose self-control, must also be bad enough to pass the ordinary person test.

TEST LIMB 2 If answer to first limb is ‘yes’ was conduct of the deceased such that it
could have induced an ordinary person in the position of the accused to have so far
lost self control as to have formed an intent to kill, or to inflict grievous bodily harm
upon the deceased, whether the conduct of the deceased occurred immediately before
the act/omission causing death, or at any previous time?

Green v R (1997) 191 CLR 334: Donald Gillies made (non-aggressive) sexual advances to
his 22 year old friend Malcolm Green. Green punched Gillies 15 times, banged his head on
the wall, and stabbed him 10 times with scissors, killing him. Green had witnessed his father
assaulting his mother, and had heard that his father had sexually abused his four sisters. He
argued that this made him more sensitive to the conduct of Gillies, and pleaded provocation.
Held: The trial judge was in error to rule inadmissible the evidence of the special
sensitivity to sexual advances on the part of the defendant/appellant as it denied Green the
chance of an acquittal from murder to manslaughter based on provocation. [Note however,

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that recent changes to Crimes Act mean that unwanted non-violent sexual advances aren’t a
defence any longer: see s 23(3)(a) so this case doesn’t reflect current law on this point]
 [Regarding the first limb of test] to assess whether a person was provoked one must
look at the gravity of the provocation and factors such as age, sex, race, ethnicity,
physical features, personal relationships and history of the accused may be taken into
account.
 However when assessing [the second limb] whether the accused’s response/level of
self-control was that of an ordinary person, his personal characteristics – except for
age – are to be ignored. In applying the ordinary person test, the defendant’s response
is compared to that of an ordinary person with ordinary powers of self-control, even
though the defendant may not have such powers of self-control due to his/her special
background. This is a constraint that limits the provocation defence so it isn’t abused.
[Retrial ordered. At the new trial in 1998, Green convicted of manslaughter]

R v Sievers (2004): accused said that over a period of 4 days the deceased had been verbally
abusing him and also hit him with a hammer and shoes, stabbed him with syringes, gouged
his eyes, bit his nose and scratched him. She was about to stab him with a knife when he
killed her.
Issue: The nub of the complaint is the trial judge’s summing up. The trial judge portrayed the
ordinary person test as one of probability rather than mere possibility. The accused argued
that the trial judge wrongly transformed a subjective possibility into an objective probability
when actually it is sufficient to show that the deceased ‘could have induced’ a violent
response in an ordinary person, but the trial judge misdirected by saying could or could not
be ‘expected’.
Held: It’s true the test is one of possibility, so the accused need not meet as high a standard as
would be the case if it were one of probability. However in this case, the use of the word
‘expect’ does not mean anything more than ‘think’ or ‘suppose’, ‘come to the view that’,
‘contemplate’ or ‘have in mind’ and there was no miscarriage of justice.
[Appeal dismissed, conviction for murder upheld]

Stingel case (1990, HCA): Defendant sees his ex-girlfriend engaging in sexual activities in a
car with another man. Stingel opens the car door, other man says: ‘Piss off, you cunt, piss
off’. Stingel gets a butcher’s knife from his car, comes back and stabs the man to death.
Issue: To what extent should the personal characteristics of the accused, such as his
infatuation with his former girlfriend, be taken into account in the ordinary person test?
Held: The High Court of Australia held that the judge was right to withdraw the issue of
provocation from the jury on the ground that such conduct could not raise even a reasonable
doubt as to whether the objective element in the defence had been satisfied. The objective test
for provocation is a two stage test:
1. Assess gravity/degree of provocation the defendant faced.
In assessing this, attributes of the accused may be taken into account, since
that is putting the provocative insult into context and thus does not undermine
the 'objective' test. This includes 'age, sex, race, physical features, personal
attributes, personal relationships and past history may be relevant... even
mental instability or weakness'.

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2. Asses the response of the ordinary person to that degree of provocation (would
an ordinary person lose self control in the face of that degree of provocation).
This test doesn't include any personal characteristics of the defendant bar age,
because everyone goes through aging and its thus an ordinary process.
Totality of Conduct
In applying the first limb of objective test, the 'totality of the conduct' is examined
(past/background events as well). This is because acts or words when taken separately may
not amount to sufficient provocation but when taken in combination or because of their
accumulation, may be enough.
Context
The objective test is framed in a contemporary concept (ie, take into account values and
attitudes) because it affects the ordinary person.
Rationale of the Objective Test
The rationale of the test as 'to ensure that in the evaluation of the provocation defence there is
no fluctuating standard of self-control against which Defendants are measured. The
governing principles are those of equality and individual responsibility, so that all persons are
held to the same standard notwithstanding their distinctive personality traits and varying
capacities to achieve the standard'.
[Appeal dismissed]

R v Singh [2012] NSWSC 637: Singh cut his wife’s throat several times with a box-cutter,
and claimed that his wife, Manpreet Kaur, provoked him by telling him she had never loved
him, was in love with someone else and threatened to have him deported. As a result, he lost
his self-control and killed her. Singh was convicted of manslaughter based on provocation
and sentenced to a non-parole term of imprisonment of six years.

OTHER REQUIREMENTS:
 An accused can’t make a mistake as to identity and kill the wrong person and then
claim provocation. In R v Dib the accused killed the wrong person who had only a
minor role in a group supposedly attacking his brother and friends.
 Generally the provocation must occur in the sight and hearing of the accused and
directly involve accused and the victim.

2. Substantial impairment by abnormality of mind (SIAM)

Defence must prove SIAM on the balance of probabilities to obtain conviction for
manslaughter in a murder case. Like insanity, it is ultimately a question for a jury
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to
understand events, or to judge whether the person’s actions were right or wrong, or to control
himself or herself, was substantially impaired by an abnormality of mind arising from an
underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to
manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so
substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death

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concerned, and the intoxication was self-induced intoxication (within the meaning of section
428A), the effects of that self-induced intoxication are to be disregarded for the purpose of
determining whether the person is not liable to be convicted of murder by virtue of this
section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of
murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be
convicted of murder is to be convicted of manslaughter instead.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by
virtue of this section does not affect the question of whether any other person is liable to be
convicted of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at
the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions,
and the Court may give directions as to the stage of the proceedings at which that evidence
may be offered.
(8) In this section:
"underlying condition" means a pre-existing mental or physiological condition, other than a
condition of a transitory kind.
TEST: The person’s capacity to understand events OR judge whether their actions
were right or wrong OR to control him or herself:
(i) were ‘substantially impaired’
Less than total but more than trivial

(ii) by an ‘abnormality of mind’

‘[A] state of mind so different from that of ordinary human beings that the reasonable man
would regard it as abnormal. It appears… wide enough to cover the mind’s activity in all its
aspects, not only the perception of physical acts and matters, and the ability to form a rational
judgment as to whether an act is right or wrong, but as to the ability to exercise will power to
control physical acts in accordance with that rational judgment’ (R v Byrne [1960] 2 QB 396).

(iii) arising from an ‘underlying condition’

AND the impairment was substantial enough to warrant a reduction from murder to
manslaughter
Question of judgment about whether the accused’s liability is reduced – moral judgment by a
jury or judge sitting without jury, not medical: R v Trotter (1993) 35 NSWLR 428

If the accused was suffering from self-induced intoxication, that intoxication is to be

disregarded for the purpose of s23A: R v Ryan (1995) 90 A Crim R 191

If an accused person raises insanity, the prosecution can counter this with evidence of SIAM.
If an accused person raises SIAM, the prosecution can counter this with evidence of insanity:
R v Ayoub [1984] 2 NSWLR 511

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3. Excessive self-defence
421 Self-defence-excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of
another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person
is to be found guilty of manslaughter if the person is otherwise criminally responsible for
manslaughter.

To establish that self-defence was excessive, one must first ascertain what level of self-
defence was reasonable using established principles for self-defence

The law recognises the right of a person to act in self-defence from an attack or threatened
attack even to the point of killing and with the intention of killing or inflicting grievous
bodily harm (or with reckless indifference to human life).

This right arises where the person believes that his/her act was necessary in order to defend
himself/herself and what the accused did was a reasonable response in the circumstances as
he/she perceived them.

Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an

issue by proving beyond reasonable doubt that the accused’s act was not done in self-defence.
It may do this by proving beyond reasonable doubt either:

1. That the accused did not believe at the time of the act that it was necessary to do what
he/she did in order to defend himself/herself, or
2. The conduct by the accused was not a reasonable response in the circumstances as he/she
perceived them.

For the Crown to eliminate self-defence as an issue, it must prove beyond reasonable doubt
one or the other of these matters. It does not have to prove both of them.

In R v Cakovski (2004) 149 A Crim R 21, evidence was given by the appellant that he
stabbed the deceased in self-defence when the (unarmed) deceased persisted in aggression
and threats to kill him. The court held that the trial judge erroneously rejected evidence that
23 years earlier, the deceased had killed three people, and that a few hours before his death,
he threatened to kill another person “like I killed the other three people”.

4. Infanticide
22A Infanticide
(1) Where a woman by any wilful act or omission causes the death of her child, being a child
under the age of twelve months, but at the time of the act or omission the balance of her mind
was disturbed by reason of her not having fully recovered from the effect of giving birth to
the child or by reason of the effect of lactation consequent upon the birth of the child, then,

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notwithstanding that the circumstances were such that but for this section the offence would
have amounted to murder, she shall be guilty of infanticide, and may for such offence be
dealt with and punished as if she had been guilty of the offence of manslaughter of such
child.

(2) Where upon the trial of a woman for the murder of her child, being a child under the age
of twelve months, the jury are of opinion that she by any wilful act or omission caused its
death, but that at the time of the act or omission the balance of her mind was disturbed by
reason of her not having fully recovered from the effect of giving birth to such child or by
reason of the effect of lactation consequent upon the birth of the child, then the jury may,
notwithstanding that the circumstances were such that but for the provisions of this section
they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide,
and the woman may be dealt with and punished as if she had been guilty of the offence of
manslaughter of the said child.

(3) Nothing in this section shall affect the power of the jury upon an indictment for the
murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground
of insanity, or a verdict of concealment of birth.
Fault (mental) elements
- ‘Wilful act or omission’.
- Construed as intentional or reckless.

II. Involuntary Manslaughter

1. Manslaughter by unlawful and dangerous act
2. Manslaughter by gross negligence

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