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[This direction is designed to be given after charging the jury on murder].
In this case, the defence has argued that NOA killed NOV under a suicide pact. I must therefore give you some directions about this partial defence.
The law states that a person who kills another person as part of a suicide pact should not be convicted of murder. He or she should be convicted of manslaughter instead.
You only need to consider the question of whether or not NOA killed NOV as part of a suicide pact if you are satisfied that the prosecution has proven all the elements of murder beyond reasonable doubt. If you are not satisfied that is the case, then you must not convict him/her of either murder or manslaughter.
Reverse Onus Direction
This is one of those rare situations in which a matter must be proved by the defence. It is defence counsel who must establish that NOA killed NOV as part of a suicide pact. If they cannot prove that was the case, then as long as you are satisfied that the prosecution has proven all the elements of murder, you should convict NOA of murder.
However, unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – the defence only needs to prove this matter on what is called the "balance of probabilities". This is a much lower standard than that required of the prosecution when proving an offence. It only requires the defence to prove that it is more probable than not that NOA killed NOV as part of a suicide pact.
Elements of A Suicide Pact
In order to prove that NOA killed NOV as part of a suicide pact, there are three matters that the defence must establish on the balance of probabilities.
First, they must establish that there was a "suicide pact" between NOA and NOV. The law defines a "suicide pact" as an agreement between two or more people to seek the death of all parties to the agreement.
[Summarise any evidence and/or arguments relating to the existence of a suicide pact.]
Second, the defence must establish that [identify act alleged to have caused NOV’s death] was done in the course of carrying out the suicide pact.
[Summarise any relevant evidence and/or arguments relating to whether the relevant act was committed pursuant to the suicide pact.]
Third, the defence must establish that at the time s/he caused NOV’s death, NOA had the settled intention of dying in accordance with the agreement.
[Summarise any evidence and/or arguments relating to the accused’s mental state.]
If the defence establishes all three of those matters on the balance of probabilities, then the accused must be acquitted of murder and convicted of manslaughter.
Last updated: 14 December 2010