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8.2.3 - Checklist: Murder Self-Defence with Manslaughter

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[This checklist can be used if it is alleged that the accused committed murder on or after 23 November 2005 and before 1 November 2014, there is evidence from which a jury might infer that he or she was acting in self-defence, and both criminal negligence and unlawful and dangerous act manslaughter are available as alternative verdicts.[1]

The checklist is designed for use where it is alleged that the accused believed it was necessary to do what s/he did to defend him/herself. It will need to be modified if it is alleged that the accused acted to defend another person or to terminate the unlawful deprivation of liberty.

If only criminal negligence manslaughter is available as an alternative verdict, use Checklist: Murder Self-Defence with Criminal Negligence Manslaughter.

If only unlawful and dangerous act manslaughter is available as an alternative verdict, use Checklist: Murder Self-Defence and Unlawful with Dangerous Act Manslaughter.

If manslaughter is not available as an alternative verdict, use Checklist: Murder Self-Defence With No Manslaughter.

If it is alleged that the accused committed the murder prior to 23 November 2005, see Common Law Self-Defence.]

If it is alleged that the accused committed the murder on or after 1 November 2014, see Statutory Self-Defence.]

Murder

Before you can convict the accused of murder, there are four elements that the prosecution must prove beyond reasonable doubt:

  1. The accused caused the victim’s death; and
  2. The accused’s acts were conscious, voluntary and deliberate; and
  3. The accused intended to kill or cause really serious injury; and
  4. The accused did not believe that it was necessary to do what s/he did to defend him/herself from being killed or really seriously injured.

 

Cause of Death

1. Has the prosecution proved that the accused caused the victim’s death?

Consider – Were the accused’s actions a substantial or significant cause of the victim’s death?

If Yes then go to 2

If No, then the accused is not guilty of Murder

Conscious, Voluntary and Deliberate Acts

2. Has the prosecution proved that the accused’s actions which caused the death were conscious, voluntary and deliberate?

If Yes then go to 3

If No, then the accused is not guilty of Murder

Intention

3. Has the prosecution proved that at the time the accused did the acts that caused the victim’s death, s/he intended to kill or to cause really serious injury?

If Yes then go to 4

If No, then the accused is not guilty of Murder (but may be
guilty of Manslaughter – Go to 6)

Self-Defence

4. Has the prosecution proved that the accused did not believe that it was necessary to do what s/he did to defend him/herself from being killed or really seriously injured?

Consider – What were the circumstances as perceived by the accused?

If Yes then the accused is guilty of Murder (as long as
you also answered Yes to Questions 1, 2 and 3)

If No, then the accused is not guilty of Murder (but may be
guilty of Defensive Homicide – Go to 5)

Defensive Homicide

The offence of defensive homicide should only be considered if you answered "Yes" to Questions 1, 2 and 3 above, and "No" to Question 4.

Before you can convict the accused of defensive homicide, the prosecution must prove, beyond reasonable doubt, that:

5. There were no reasonable grounds for the accused to believe that what s/he did was necessary to defend him/herself from being killed or really seriously injured.

Defensive Homicide

5. Has the prosecution proved that there were no reasonable grounds for the accused to believe that what s/he did was necessary to defend him/herself from being killed or really seriously injured?

Consider – What were the circumstances as perceived by the accused?

If Yes then the accused is guilty of Defensive Homicide (as long
as you also answered Yes to Questions 1, 2 and 3 and No to Question 4)

If No, then the accused is not guilty of Defensive Homicide

Manslaughter

The offence of manslaughter should only be considered if you answered "Yes" to Questions 1 and 2 above, and "No" to Question 3.

Before you can convict the accused of manslaughter, the prosecution must prove, beyond reasonable doubt, either that:

6. The accused committed a criminally negligent act; or

7. The accused committed an unlawful and dangerous act.

The prosecution must also prove, beyond reasonable doubt, that:

8. The accused’s act was not committed in self-defence.

Criminal Negligence

6. Has the prosecution proved that the act which caused the victim’s death was committed in circumstances which involved such a great falling short of the standard of care that a reasonable person would have exercised, and involved such a high risk of causing death or really serious injury, that it deserves to be criminally punished?

If Yes, then go to 8a

If No, then go 7a

Unlawful and Dangerous Act

7a. Has the prosecution proved that the accused intended to commit the act that caused the victim’s death?

If Yes, then go to 7b

If No, then the accused is not guilty of Manslaughter

7b. Has the prosecution proved that the accused’s act that caused the victim’s death was unlawful?

If Yes, then go to 7c

If No, then the accused is not guilty of Manslaughter

7c. Has the prosecution proved that the accused’s act that caused the victim’s death was dangerous?

Consider – Would a reasonable person consider that an act of that kind would expose another person or other people to an appreciable risk of serious injury?

If Yes, then go to 8a

If No, then the accused is not guilty of Manslaughter

Self-Defence

8a. Has the prosecution proved that the accused did not believe that it was necessary to do what s/he did to defend him/herself?

Consider – What were the circumstances as perceived by the accused?

If Yes, then the accused is guilty of Manslaughter (as long as
you also answered Yes to Questions 1, 2 and either 6 or 7(a, b and c))

If No, then go to 8b

8b. Has the prosecution proved that there were no reasonable grounds for the accused to believe that what s/he did was necessary to defend him/herself?

Consider – What were the circumstances as perceived by the accused?

If Yes, then the accused is guilty of Manslaughter (as long as
you also answered Yes to Questions 1, 2 and either 6 or 7(a, b and c))

If No, then the accused is not guilty of Manslaughter

Notes

[1] This checklist will need to be adapted if reckless murder has been left to the jury - see Checklist: International and Reckless Murder (without Self-Defence).

Last updated: 1 November 2014

See Also

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.2.1 - Charge: Murder Self-Defence

8.2.2 - Charge: Defensive Homicide

8.2.4 - Checklist: Murder Self-Defence with Criminal Negligence Manslaughter

8.2.5 - Checklist: Murder Self-Defence with Unlawful and Dangerous Act Manslaughter

8.2.6 - Checklist: Murder Self-Defence with No Manslaughter

8.2.7 - Charge: Manslaughter Self-Defence

8.2.8 - Checklist: Manslaughter Self-Defence

8.2.9 - Checklist: Unlawful and Dangerous Act Manslaughter

8.2.10 - Checklist: Criminal Negligence Manslaughter