LAW 113 - CRIMINAL LAW 2018 RESIDENTIAL SCHOOL HOMICIDE Leigh Haywood Senior Solicitor Legal Aid Orange

_________________ Law Lecturers ________ UNIVERSITY

PERSPECTIVE BOCSAR CRIMINAL COURT STATISTICS 1 JAN 2012- 31 DEC 2016 Traffic Offences 57,140 Offences against justice procedures 48,541 Acts Intended to cause in injury 44,449 Theft and related offences 24,220 Drug offences 19,403 Fraud and related offences 18,632 Public order offences 17.548 Property Damage 14,553 Dangerous or negligent acts 8,030 Miscellaneous 6,559 Break and enter and unlawful entry 5,975 Sexual Assault and related offences 4,368 Weapons 4,190 Abduction, harassment 2,656 Robbery and related offences 2,165 Homicide and Related Offences 301 Total 278,730 (0.1%)

OBJECTIVES Review the ‘types’ of homicide – murder/manslaughter Consider aspects of murder using Lane v R [2013] NSWCCA 317 Murder/manslaughter distinction Inferring Intention Inferring an act Consider aspects of manslaughter Criminal negligence Unlawful an dangerous act Consider some ‘defences’ NGMI/substantial impairment Self defence

The basics… Section 18 Crimes Act 1900 (1)(a)Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, 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 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. (b) Every other punishable homicide shall be taken to be manslaughter (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

Lane v R [2013] NSWCCA 317 A CASE STUDY IN HOMICIDE

‘Section 18(1)(b) makes clear that murder and manslaughter are mutually exclusive. If a killing is murder it is not manslaughter. It is murder if it is accompanied by the requisite state of mind. The same conduct cannot constitute both offences. …. If the requisite state of mind for murder is not proved, it is appropriate to consider whether, notwithstanding that murder has not been proved, the evidence may nevertheless establish the lesser offence of manslaughter.’ Lane v R [2013] NSWCCA 317 at [45]

But first… Fit to plead? Mental Health (Forensic Provisions Act 1990 Part 2 of Act Unfitness different to insanity – can be sane yet unfit or vice versa A fluid question A question of fact for Judge having heard expert evidence R v Presser [1958] VR 45 in R v Mailes [2001] NSWCCA 155 (‘Presser principles’) R v Kesavarajah (1994) 181 CLR 230

‘He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in the general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel and by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.’