When Does One Person Kill Another?

There are three distinct elements, which must be shown in order to prove that
one person killed another. These are:
◦ Conduct – a voluntary act or omission ie stabbing
◦ Causing – ie the knife hits the heart
◦ Death – see Section 2 of the Death (Definition) Act 1983 (SA)

Section 2 of the Death (Definition) Act 1983 (SA) provides:

For the purposes of the law of this State, a person has died when there has
occurred—
(a) irreversible cessation of all function of the brain of the person; or
(b) irreversible cessation of circulation of blood in the body of the person.

Physical Element – Causation

A person’s conduct causes the death of another person if that conduct is a
substantial and operating cause of death at the time of death. The conduct
need not be the sole cause of death. (R v Hallett [1969] SASR 141; Royall v
The Queen (1991) 172 CLR 378 per Deane v Dawson JJ)

R v Hallett [1969] SASR 141

If a defendant causes a situation, which then puts the victim in danger of

being affected by another perilous situation, and the victim ends up dying
because of the new situation, the chain of causation remains unbroken
(since the first is still a substantial cause).

If the new situation happened completely of its own accord (eg, an 'act of
god'), then the chain will break.

Was the conduct of the accused a substantial and operating

cause of death at the time of death?
The question of whether a person’s conduct is a substantial cause of death is
a question of fact to be determined by the jury. It is not a scientific or
philosophical inquiry. Royall v The Queen (1991)
This is the central question that must be answered.
Look for any intervening acts.

Intervening Acts
Where there is an intervening act which breaks the chain of causation, the
accused cannot be convicted of a homicide offence??? Refer to Hallett with
regard to ‘act of god’.

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Provision of inadequate or incompetent medical treatment has often
formed the basis for an argument that the conduct of the accused was not a
substantial and operating cause of death.

Case Analysis

R v Smith [1959] 2 QB 35 – did not break the chain of causation

The defendant stabbed the victim, causing internal injury. A medical officer,
not realising the nature of the injury, gave “thoroughly bad” treatment.
The victim died within two hours of being stabbed but might not have
died if given different treatment. The defendant appealed against conviction
for murder on the basis that the treatment broke the chain.
Appeal dismissed. Death resulted from the original wound, which was still
an operating and substantial cause of the death despite other operative
causes. [1959] 2 Q.B. 35.

R v Jordan (1956) 40 Cr App R 152 – did break the chain of causation

The victim died of the medical treatment and not the stab wound. The
defendant was not liable for his death.

The defendant stabbed the victim. The victim was taken to hospital where he
was given anti-biotics after showing an allergic reaction to them. He was also
given excessive amounts of intravenous liquids. He died of pneumonia 8 days
after admission to hospital. At the time of death his wounds were starting to
heal.

R v Blaue [1975] 1 WLR 1411 – take your victim as you find them. Jehovah’s
case and refusal of blood transfusion.
A positive act on the part of the deceased may not have an impact on the
question of whether the defendant caused death.

Murder
Due to the unhelpfulness of section 11 of the CLCA murder is defined as
‘the unlawful killing of another person with malice aforethought’. Prosecution
goes to Murder first because maximum penalty of life imprisonment with non-
parole period at 20 years. S 32(5)(ab) CL Sentencing Act 1988 (SA)

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Causation is more or less involved in the homicide offenses.
GBH = really serious injury

Intention
Meaning to do something wilfully or deliberately. Argue that on the facts.
Not a defence that the accused did not intend to cause the death of the victim
(Crabbe v The Queen)

Recklessness
Recklessness = an extreme form of carelessness or an objective form of
dangerousness, and generally involves acting without thinking about the
consequences of one’s actions.

In Crabbe v The Queen (1985) 156 CLR 464 the High Court said:

“It should now be regarded as settled law in Australia that, if no statutory

provision affects the position, that a person who, without lawful justification or
excuse, does an act knowing that it is probable that death or grievous bodily
harm will result, is guilty of murder if death in fact results. It is not enough
that he does the act knowing that it is possible but not likely that death
or grievous bodily harm will result.”

If the accused does the unlawful act knowing that it is probable that death or
GBH will result is guilty. It is not enough if he does the act know it is possible
but not likely that death or grievous bodily harm will result. Crabbe v The
Queen (1985)
Probable = It imparts the notion of a strong likelihood of act causing death

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Possible = it could happen but it’s unlikely.
It is important to remember that recklessness is not a compromise point
where intention cannot be proved.
In every case, the question must be one of whether the prosecution has
established beyond reasonable doubt that the accused intended to cause
death or GBH, or was reckless with respect to whether death or GBH
was caused.
The essence of recklessness is that it involves taking an unjustified risk, of
which the accused is aware. R v Marshall (1987) 49 SASR 133
Was there an unjustified risk? Ie ‘likely’ to cause death, a ‘good chance’ to
cause death. The result was substantial and ‘real and not remote’.
Since reckless as to causing GBH is the lowest threshold a charge for
manslaughter maybe more appropriate.

Manslaughter
It refers to any unlawful killing, which is not murder. In almost all cases,
manslaughter will be available to the jury as an alternative offence where a
person is charged with murder
Section 13 CLCA relevantly provides:

(1) Any person who is convicted of manslaughter shall be liable to be imprisoned

for life or to pay such fine as the court awards or to both such imprisonment and
fine.

Two Species of Manslaughter

There are two broad categories of manslaughter:
◦ Voluntary manslaughter; and
◦ Involuntary manslaughter – if mental elements cannot be established
The term ‘involuntary’ here does not refer to the conduct of the accused, as it
ordinarily would. When we speak of involuntary manslaughter, we mean a
homicide where the accused did not intend to kill or cause GBH, and was
not reckless with respect to causing death or GBH.

Voluntary Manslaughter – Step One

In South Australia, there are two ways in which a person may be convicted of
voluntary manslaughter. Both involve the operation of a partial defence. They
are:
◦ Provocation at Common Law
◦ Excessive defence at CLCA s 15

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Provocation
The defence of provocation is available only to an accused charged with
murder, but it does not mean acquittal. If the defence is successful, it will
reduce the offence to one of manslaughter.
The onus is on the prosecution to disprove the offence beyond reasonable
doubt. Accused must raise this partial defence.

Stingel v The Queen (1990) 171 CLR 312

Facts
Case was from Tasmania. Stingel had a relationship with girlfriend ‘A’, which was
terminated. Stingel became obsessed and stalked A to the point she sought
restraining orders. There was a cabarat at the local football club. Taylor, who
was drunk, left the football club with ‘A’ and Stingel followed them and found the
pair in the car consenting to sexual activity. Taylor yelled ‘piss off you cunt’.
Stingel went to his car, had a cigarette, picked up a butchers knife and returned
to stab Taylor.

Issue
Was the wrongful act or insult of such nature that it could or might cause an
ordinary person (subjective test), where appropriate the ordinary person of the
age of the accused, lose all self-control to do what the accused did?

Reasoning
The words said to Stingel by Taylor, in the context of consensual sexual activities
with A, were insufficient to make an ordinary young man respond with lethal
violence. There was also the restraining order to consider which Stingel was in
breach of so he should not have been surprised to be greeted with such an insult.

Masciantonio v The Queen (1995) 183 CLR 58

Facts
M was charged with the murder of his son-in-law, F. M argued F had mistreated
anf then left his daughter, caused financial problems by his gambling habit, and
taken various items of her property. M confronted F, who told him to ‘piss off’,
and an altercation followed. M collected a knife from his car, the two of them
struggled and F collapsed on the footpath where M stabbed him. F died from a
stab wound to the heart, but it was uncertain whether it had been inflicted
during the struggle or while he was lying on the footpath.

Reasoning
Set out in the test for provocation.

Other cases
Discovery of infidelity, or homosexual advance, is no longer supported by
sound policy reasons. Furthermore, it is unlikely to be a question for the jury
(Kourakis J in R v Hajistassi [2010] SASC 111) May require a departure from

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the doctrine of precedent in Green v The Queen (1997) 191 CLR 334 where
it suggested that the ‘gay panic defence’ was permissible. Though no such
action was called upon on the facts.

Provocation – The Test

The test for provocation consists of both subjective and objective elements. It
is a mixed test.
◦ There must be a provocative act
◦ The accused must lose self-control as a result of the provocative
act and form the intention to kill or do GBH
◦ The provocation must be such as could cause an ordinary person
in the position of the accused to lose control and act as the accused did
Provocation will succeed, and an accused charged with murder will be
convicted of manslaughter if the prosecution fails to disprove those elements

A Provocative Act
First, it is necessary to ascertain how provocative the conduct of the
deceased was to the accused. THIS IS SUBJECTIVE
In considering this question, all personal characteristics and circumstances of
the accused must be taken into account. Age, physical appearance,
ethnicity, relationships, history.
Thus, the question is: ‘How grave was the provocative conduct to the
deceased?’

Loss of Self-Control
The accused must actually lose self control as a result of the provocation
and form the intention to kill or do GBH.
There must be a clear causal link between the provocation and the killing.
The killing must occur while the accused lacks self control.
In this sense, provocation is a defence for the hot-blooded. It may not apply to
those who brood over an insult before killing.

The Ordinary Person

The final test for provocation is that the provocation must be such as could
cause an ordinary person in the position of the accused to lose self-
control and act in the way that the accused did. This is does not account
the reasonable person. See Stingel v The Queen
This is an objective test.
The only characteristic of the accused to be attributed to the ordinary person
is age.

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Involuntary Manslaughter – Step Two Unlawful and
Dangerous Act Manslaughter (UDA Manslaughter)
It is an offence to cause the death of another by an unlawful and dangerous
act. Where this occurs, the accused may be convicted of manslaughter.

Physical Elements Fault Elements

Causes Death Intention to engage in

unlawful conduct, reckless
with respect to same
By Unlawful Act

Act is Dangerous

Causation has already been address and just say ‘refer to above’

‘Unlawful Act’
An unlawful act is simply any criminal offence.
What must be proved by the prosecution is that the accused intended to
engage in the conduct which amounted to the unlawful act.
For example, where the unlawful act was an assault, it will be necessary to
prove that the accused assaulted the deceased.
It is not necessary to prove that the accused knew the act was unlawful.

‘Dangerous’
The question of whether an unlawful act is dangerous for the purpose of UDA
Manslaughter is objective. An unlawful act will be held to be dangerous
where a reasonable person in the position of the accused would
recognise that the act carried an ‘appreciable risk of serious injury’.
(R v Wilson (1992) 174 CLR 313)
It may be permissible, where relevant, for the reasonable person to be a
reasonable person of the same age as the accused (much like provocation
with the ordinary person). Other than this, it does not appear that the
reasonable person may be invested with any other personal characteristics of
the accused. (R v TY [2006] VR 494)
What is an appreciable risk of serious injury?

 The lack of awareness of the risk of death (distinguishable from

murder, voluntary manslaughter)