Technicalities of murder

Equipment and On Road Behaviour, Laws and Rules. Cycling Promotion and Advocacy

Technicalities of murder

Postby ColinOldnCranky » Tue Mar 18, 2014 3:14 pm

So often we see people on this forum too easily and to often calling for charges of murder to be levied on an errant driver. Perhaps it is worth considering just what murder is and is not.

It seems to me that often the highly-reactive call is on the basis that the action of some driver was done with malice or intent. Even though in almost all cases there is neither malice nor intent.

Parodoxically, despite their error on intent, they may sometimes be correct anyway.

From http://www.bicycles.net.au/forums/viewtopic.php?f=53&t=73614
spacehopper wrote:I find it difficult to believe that anyone would maliciously run down another person like that, so I will assume negligence.
Having said that, the driving behaviour,was so poor that the resulting outcome was not only foreseeable but almost a foregone conclusion and I can't see any rational basis upon which the driver can avoid a conviction.


In some states of Oz (and elsewhere) one does not have to set out to kill someone. Terms like first-degree, second-degree, grievous, wilfull, with intent and so forth differentiate between types of murder.

Under Spacehoppers assessment - "forseeable" and "foregone conclusion" - something like that might, at a stretch, be conisidered as meeting the tests for murder in some jurisdictions. In simple terms reckless disregard to human life together with a "guilty muind". Sometimes what me may think can only be manslaughter.

In essence, the intention to kill must demonstrate that the person has knowledge that death may probably be the consequence of the act.
http://www.findlaw.com.au/articles/4385/what-constitutes-the-crime-of-murder-the-basic-ele.aspx

There also needs to be an intent or a certain state of mind, a "guilty mind". But even that is not necessarily an intent to kill. It may be intent to cause some other harm such as as closing in to intimidate as we see so often where drivers set out to "buzz" cyclists claiming a lane, intentionally throw an object from the car intending to strike the rider, etc.

Of course, in all cases it is still hard to meet the tests for murder. But it does not have to deliberately taking a life. (My understanding is that without the intent it would have to drop down to manslaughter.)

While I am certain that I have not got it all worked out correctly (there is a lot of broad expertise here that will clear it up I am sure), suffice to say that one does not always have to intend to kill someone to be found guilty of murder.
Unchain yourself - Ride a unicycle .Image
User avatar
ColinOldnCranky
 
Posts: 4736
Joined: Fri Feb 27, 2009 3:58 pm

by BNA » Tue Mar 18, 2014 3:41 pm

BNA
 

Re: Technicalities of murder

Postby clydesmcdale » Tue Mar 18, 2014 3:41 pm

Had this explained to me by a police officer mate some time ago in regard to murder.

He put it somewhat like this;

Throwing a brick at someone’s head… is there intent to kill in the action, probably not. Is it a reasonable outcome that someone could die as a consequence of that action, yes. If the person dies, that can be considered murder.


Substitute 1 tonne motorised vehicle for brick and bike rider for head and there can be some parallels drawn.

Edit; my initial query to copper friend was in relation to a bouncer being charged with murder for restraining a patron who later died.
clydesmcdale
 
Posts: 344
Joined: Tue Jul 10, 2012 12:43 pm

Re: Technicalities of murder

Postby high_tea » Tue Mar 18, 2014 5:59 pm

clydesmcdale wrote:Had this explained to me by a police officer mate some time ago in regard to murder.

He put it somewhat like this;

Throwing a brick at someone’s head… is there intent to kill in the action, probably not. Is it a reasonable outcome that someone could die as a consequence of that action, yes. If the person dies, that can be considered murder.


Substitute 1 tonne motorised vehicle for brick and bike rider for head and there can be some parallels drawn.

Edit; my initial query to copper friend was in relation to a bouncer being charged with murder for restraining a patron who later died.


It's more complicated than that. The links Colin provided gel pretty well with my (slight)understanding of the situation. Bear in mind too that the situation is different in "Code states": Qld and WA.

But basically, murder is a crime of specific intent. Not necessarily intent to kill, but there has to be a certain state of mind, without which it's manslaughter.
high_tea
 
Posts: 1267
Joined: Thu Apr 29, 2010 8:10 pm

Re: Technicalities of murder

Postby Parker » Tue Mar 18, 2014 6:26 pm

Good to be reminded
Parker
 
Posts: 1436
Joined: Wed Aug 04, 2010 6:25 pm

Re: Technicalities of murder

Postby ColinOldnCranky » Wed Mar 19, 2014 12:28 am

high_tea wrote:
But basically, murder is a crime of specific intent. Not necessarily intent to kill, but there has to be a certain state of mind, without which it's manslaughter.

Succinct.
Unchain yourself - Ride a unicycle .Image
User avatar
ColinOldnCranky
 
Posts: 4736
Joined: Fri Feb 27, 2009 3:58 pm

Re: Technicalities of murder

Postby rogan » Wed Mar 19, 2014 10:07 am

ColinOldnCranky wrote:
high_tea wrote:
But basically, murder is a crime of specific intent. Not necessarily intent to kill, but there has to be a certain state of mind, without which it's manslaughter.

Succinct.


Three ways that the mental element of murder can be established (in NSW):

1. intent to kill
2. intent to do grievous bodily harm
3. reckless indifference to human life - this is the "probably" referred to above. If you do an illegal act knowing that another person will probably die, that is reckless indifference to human life in the relevant sense. This is a higher standard than a "reasonable outcome", "reasonably possible" or even "likely". The Crown must prove beyond reasonable doubt that in the mind of the defendant, it was probable that someone would die as a result of the act in question. In the words of the High Court "It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element."

The other way you can be done for murder (in NSW) is someone dies in the commission (or attempt) of a really serious crime (itself punishable by more than 25 years) - in that case the relevant mental element is whatever the mental element is for that crime. For example, armed robbery.

As to this last point, I am not aware of any specific driving or road offences that attract 25 years as the maximum penalty (again, in NSW) - but someone out there may know more...
Image
rogan
 
Posts: 744
Joined: Thu Feb 25, 2010 9:31 pm
Location: Sydney

Re: Technicalities of murder

Postby find_bruce » Wed Mar 19, 2014 1:05 pm

Technically that would be 4 ways Rogan, but other than that, it is my understanding as well.

I am confident you are correct that no driving or road specific offences are punishable by imprisonment for 25 years or more. The maximum penalty in NSW for Manslaughter is 25 years & the various driving offences were established as an easier to prove alternative to manslaughter. The most serious of these is aggravated dangerous driving occasioning death which is punishable by imprisonment for 14 years.
Image
User avatar
find_bruce
 
Posts: 3777
Joined: Mon May 09, 2011 8:42 pm
Location: Sydney

Re: Technicalities of murder

Postby rogan » Wed Mar 19, 2014 1:49 pm

find_bruce wrote:Technically that would be 4 ways Rogan, but other than that, it is my understanding as well.

I am confident you are correct that no driving or road specific offences are punishable by imprisonment for 25 years or more. The maximum penalty in NSW for Manslaughter is 25 years & the various driving offences were established as an easier to prove alternative to manslaughter. The most serious of these is aggravated dangerous driving occasioning death which is punishable by imprisonment for 14 years.


Well, if we're going to be technical, then technically it would be three plus however many ways you can establish the mens rea in the numerous offences punishable with 25 years imprisonment... :D
Image
rogan
 
Posts: 744
Joined: Thu Feb 25, 2010 9:31 pm
Location: Sydney

Re: Technicalities of murder

Postby London Boy » Wed Mar 19, 2014 2:17 pm

find_bruce wrote:Technically that would be 4 ways Rogan, but other than that, it is my understanding as well.

In Qld, murder requires:

1. Intent to kill or do grievous bodily harm to a person, not necessarily the one who actually died;
2. Doing an act for an unlawful purpose, where the likely consequence of the act would be death;
3. Drugging someone to help either commit a crime or to escape afterwards, where the person dies of it;
4. Suffocating a person for the same reasons as 3 above.

Intention is an element of 1; intention is relevant to 2-4 only so far as the act itself was intended. In those circumstances, it doesn't matter whether the death was intended or even expected. However, unlawful killing is manslaughter in cases of diminished responsibility, some kinds of provocation (that one should go), and family violence (battered wives).

I used slightly loose language in 3/4. By crime, I mean an offence for which a person can be arrested without a warrant.

2 is interesting. Doing an act for an unlawful purpose, not necessarily doing an unlawful act. So a person who drives dangerously to escape capture could be done for murder if they kill someone; a person who just drives dangerously would be done, at most, for dangerous operation of a vehicle causing death.
User avatar
London Boy
 
Posts: 603
Joined: Fri Nov 19, 2010 2:43 pm

Re: Technicalities of murder

Postby London Boy » Wed Mar 19, 2014 2:18 pm

rogan wrote:Well, if we're going to be technical, then technically it would be three plus however many ways you can establish the mens rea in the numerous offences punishable with 25 years imprisonment... :D

But not in Queensland. We don't do mens rea up here.
User avatar
London Boy
 
Posts: 603
Joined: Fri Nov 19, 2010 2:43 pm

Re: Technicalities of murder

Postby rogan » Wed Mar 19, 2014 3:55 pm

London Boy wrote:
rogan wrote:Well, if we're going to be technical, then technically it would be three plus however many ways you can establish the mens rea in the numerous offences punishable with 25 years imprisonment... :D

But not in Queensland. We don't do mens rea up here.


See previous post, to which find_bruce was responding, in which I used the expression "in NSW" on three separate occasions...
Image
rogan
 
Posts: 744
Joined: Thu Feb 25, 2010 9:31 pm
Location: Sydney

Re: Technicalities of murder

Postby Mulger bill » Wed Mar 19, 2014 6:04 pm

Y'Know, I don't think the deceased really gives a rats about fancy words...
...whatever the road rules, self-preservation is the absolute priority for a cyclist when mixing it with motorised traffic.
London Boy 29/12/2011
User avatar
Mulger bill
Super Mod
Super Mod
 
Posts: 25873
Joined: Sun Sep 24, 2006 2:41 pm
Location: Sunbury Vic


Return to Cycling Safety and Advocacy

Who is online

Users browsing this forum: Chef



Popular Bike Shops
Torpedo 7 Torpedo7 AU
Ground Effect Ground Effect NZ
Chain Reaction Cycles CRC UK
Wiggle Wiggle UK
Ebay Ebay AU

“Bicycles BNA Twitter
“Bicycles BNA Facebook
“Google+ BNA Google+
“Bicycles BNA Newsletter

> FREE BNA Stickers
> BNA Cycling Kit