Criminal Law: Murder and Defences

Running head: Criminal Law
CRIMINAL LAW
Name of the Student:
Name of the University:
Author Note:

Criminal Law1
Answer:
Issues:
The issue involved in the instant case to establish the defence in favor of Harry in the
appellate court.
Rules:
Murder under common law can be defined as the unlawful killing of the reasonable
person with aforethought malice express or implied1. The most important elements of murder are
actus reus and the mens rea. Actus reus for murder refers to the unlawful killing of a human. In
order to establish the act of murder, the prosecution must prove the following elements;
 That victim or plaintiff has died,
 That the act or an omission of the accused person was the cause behind the victim’s
death,
 That the accused person’s act does not have any legal cause or excuse,
 That the act that caused the death was done by the accused,
 That the accused did it with an intention to kill or commit grievous bodily injury to some
person,
 That the accused person has not committed the act under automatism,
 That the accused has not done the act under any mental illness.
The main essentials of murder under common law are discussed below;
1 Brown, David, et al. Criminal Laws: Materials and commentary on criminal law and process in NSW. Federation
Press, 2011.

Criminal Law2
1. Unlawful: This element differentiates murder from other types of killings like some
killings are done for lawful purposes. For instance, killing someone as self defence will
not amount to murder. Similarly, where death penalty is given, such orders will be
regarded as lawful. In all unlawful killings, causation has to be proved. Similarly, soldiers
or police officers can kill during their duties. However, they will be held liable if they
cause killing when they go outside of their duty as decided in landmark decision given in
R v Clegg 2case.
2. Human being: The next element needs that the victim has to be a human being. This
does not include animals obviously but points that at when can a human being cease to be
a human being. It has been held in the case of A-G ref (No 3 of 1994)3 that a foetus is not
regarded as a human being; thus when anyone is accused of killing a foetus, he cannot be
charged for the offence of murder.
3. Mens rea: The next element of murder is mens rea which is a malice or intention. Mens
rea for murder not only covers direct intention but also oblique intention. It refers to the
state of mind of the accused person.
Manslaughter is similar to murder except that the element of malice aforethought is
absent in case of manslaughter.
In English law, diminished responsibility is one of the defences used by the accused to
reduce the degree of offence from murder to offence of manslaughter or voluntary
manslaughter. It is given in section 2 of the Homicide Act 19574 after amendment by section
52 of the Coroners and Justice Act 20095. In order to rely on this particular defence, the
accused or the defendant must prove the following criteria;
2 R v Clegg [1995] 1 AC 482.
3 A-G ref (No 3 of 1994) [1998] AC 245.
4 The Homicide Act 1957, s.2.
5 The Coroners and Justice Act 2009,s.52.

Criminal Law3
 That an abnormal mental functioning happened by a recognized and well-known
medical condition,
 Such medical condition gives an explanation or analysis of the acts or omissions
of the defendant for being a party to the act of killing,
 Such mental condition has impaired the mental ability of the defendant to
understand the conduct’s nature or to form a judgment which is rational or to
exercise self control.
Before the Coroners and Justice Act 2009, the Homicide Act6 denoted the mind
abnormality. The question to be determined is finding out what may be regarded as the
abnormality of the mental functioning. The question whether the defendant is suffering from any
abnormal mental functioning is to be decided by the judges after considering the medical history
and details. Such abnormality is assessed by comparing a reasonable man in that situation.
In the case of R v Byrne (1960)7, it was held that abnormality of mind was wide enough
to include the mind’s activities in all the aspects that include the ability of the accused to exercise
will power for controlling the physical acts according to the rational judgment. In every case of
abnormal mental condition, the defendant must prove that the nature was very excessive and
extreme when compared to that of a reasonable man.
The mental abnormality is required to provide an explanation for the act or omission of
the defendant for being party in the killing. This refers to the issue of causation under section 1B
of the Homicide Act 19578 which states that an abnormal mental functioning gives an discussion
for the conduct of defendant when it is an important contributory factor that led the defendant to
6 The Homicide Act 1957.
7 R v Byrne (1960) 2 QB 396.
8 The Homicide Act 1957, s.1B.