Part 27: Australia’s “irrelevant” Crimes against Humanity: The 3 ‘Elements of Murder’ according to the Justice College of Victoria Charge Book.Victorian

Why are Australia’s “irrelevant” Crimes against Humanity actually crimes?

[Note: the short link for this web page is:   http://wp.me/p1n8TZ-wG   ]

The Justice College of Victoria Act (2001) established the Justice College as a vital resource for judges, prosecutors and police officers. Note the purpose of the Act as set out in the  s 1 of this Act. (Extra lines deleted in this posting.)

Version No. 011
Judicial College of Victoria Act 2001
No. 20 of 2001
The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY

1 Purpose: The purpose of this Act is to establish the Judicial
College of Victoria with the function of assisting the professional development of judicial officers and providing continuing education and training for judicial officers.

[TRANSLATION] Laws and court decisions are now so complex that the Justice College was set up to help judges to understand the law. The beauty of this that complex laws are explained in plain language that any Year 8 student should be able to understand. It also means that anyone who reads Justice College material has insight in both the Law and the mindset of judges.

The 3 Elements of Murder are set out below with my take on the Justice College statements added in [brackets]. It has been my consistent viewpoint ever since I first posted on this website 177 postings and over 1 million words ago that Breaching is a serious crime and that breaching triggered deaths are murders. So check out the Justice College “Charge Book” explanations below. My comments are in [bracketed BOLD print] and I am still working through this information:

7.2.1.1 – Bench Notes[1] (Source: Judicial College of Victoria.)

Forms of Murder

  1. There are three ways in which murder can be committed:
    1. The accused can cause the victim’s death while intending to kill or cause really serious injury, or being reckless as to that result;[2]
    2. The accused can unintentionally cause the victim’s death in the course or furtherance of certain violent crimes; and
  • The accused can unintentionally cause the victim’s death in order to escape arrest. [Not applicable to Breachgate or Waivergate fatalities.]
  1. [HOWEVER: The principle of “Automatic Murder” applying to breaching triggered fatalities is almost certainly valid under Article (1) (a) of the Rome Statute of the International Criminal Court of Justice as breaching is an intentional act of deprivation with such a reckless disregard for loss of life that fatalities are officially deemed “irrelevant”.]
  1. These notes address the first category of murder outlined above. See Constructive Murder: Bench Notes for information concerning the second and third categories.

Overview of Elements

  1. Murder is a crime at common law. It has the following four elements, each of which the prosecution must prove beyond reasonable doubt:
    1. The accused committed acts which caused the victim’s death;
    2. The accused committed those acts voluntarily;[3]
  • The accused committed those acts while:
    1. intending to kill someone or cause them really serious injury; or
    2. [if reckless murder has been left to the jury] knowing that it was probable that death or really serious injury would result.
  1. The accused did not have a lawful justification or excuse for those acts (such as self-defence, provocation, duress or sudden or extraordinary emergency).
  1. Each of these elements is addressed in turn below.

Acts which Caused the Victim’s Death

  1. The first element that the prosecution must prove is that the accused committed acts which caused the victim’s death. There are three aspects to this element:
    1. The accused must have committed the relevant acts;
    2. Those acts must have caused someone to die; and
  • The victim must have been a human being.

Accused must have Committed the Relevant Acts

  1. For the accused to be found guilty of murder, the prosecution must prove, beyond reasonable doubt, that s/he committed the act or acts which are alleged to have caused the victim’s death.
  2. In most cases it will be clear which act or acts were the cause of death, and so little time will need to be spent addressing this issue (other than directing the jury that before they can convict the accused, they must be satisfied that s/he committed the relevant act or acts) (Ryan v R (1967) 121 CLR 205).
  3. Specific directions may be required where the death may have been caused by one or more acts in a series of acts. See Causation: Bench Notes.
  4. Where additional directions are appropriate, the jury should be directed about the different ways the causal act can be identified, and instructed that it is for them to determine:
    • What acts caused the victim’s death (see below); and
    • Whether the accused committed the relevant act or acts (Ryan v R (1967) 121 CLR 205).

Acts That Caused Someone to Die

  1. The accused’s acts must have caused the victim’s death. That is, his/her acts must have “contributed significantly” to the death, or been a “substantial and operating cause” of it (Royall v R (1991) 172 CLR 378; R v Rudebeck [1999] VSCA 155). [Breaching is a willful act of destitution that violates constitutional rights, statute law rights, common law rights, and supposedly inalienable human rights that are supposedly protected by internal conventions, laws and treaty obligations that all (supposedly) apply in Australia.]
  2. The acts must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death. The mere fact that the accused’s conduct contributed causally to the death, or was a necessary cause of it, is not sufficient (Royall v R (1991) 172 CLR 378). [“a cause” of the death which is not the same as ‘the cause’ of a death. 63% of Australians are obese which has the potentially lethal co-morbidity problem of hypertension. Unconstitutional and a crime against humanity, breaching could easily be “a cause” that triggers a fatal stroke or heart attack. Suicide is the most common form of violent death and since breaching laws were upgraded in 1986, unemployed people with Depression top the list for suicides. Breaching could easily so stupefy and overwhelm an unemployed person with Depression that the emotion duress caused by being breached is the reaction trigger for a successful suicide attempt.]
  3. The accused’s acts do not need to be the sole cause of the death. A person can be criminally liable for a death that has multiple causes, even if he or she is not responsible for all of those causes (Royall v R (1991) 172 CLR 378). [See my comments above for my opinion on this point of law.]
  4. Previously, the law held that a delay of more than “a year and a day” between the accused’s acts and the victim’s death meant that the accused’s acts could not be regarded as a cause of that death. That limitation has been abolished (Crimes Act 1958 s9AA), and now applies only to offences alleged to have been committed before 19 November 1991. [Nowhere in Australia is there a statute of limitations on breaching triggered murders.]
  5. In many cases it will be unnecessary for the judge to do more than simply identify causation as an element of the offence. However, more detailed directions should be given if:
    • Causation was a live issue in the trial; or
    • An undirected jury might consider causation to be a live issue.
  6. The cases where causation will be a live issue will include those where:
    • There were multiple possible causes of the death;
    • The death was delayed;
    • There were intervening acts between the accused’s actions and the victim’s death; or
    • The accused is alleged to have caused the death indirectly (Royall v R (1991) 172 CLR 378). [My opinion on this is simple: Breaching legislation is mass murder by federal legislation. The act of breaching may precipitate a chain reaction of events that result in a fatality. For example, a breached person who suffers from acute Asthma has no money to purchase preventative medication, e.g. an Asthma ‘puffer’ such as Ventolin or Pulmacort, and died for lack of medication during an Asthma attack. Such risks are easily foreseen and Recommendation 14.1.1 of the Report of the Royal Commission into the Home Insulation Program underscores the fact that the failed attempt by the Abbott Government in August and September 2014 to deprive hundreds of thousands of young Australians of subsistence allowance for 6 months is evidence of the willingness of some Australian federal politicians to abuse their power and enact legislation that is at odds with state and territory murder laws and homicide case law decisions for spurious, “Posen Mindset” ideology driven reasons.]
  7. See Causation: Bench Notes for further information about this issue.

Victim a Human Being [Logical for a homicide.]

  1. The accused must have caused the death of a “human being” (R v Hutty [1953] VLR 338).
  2. “Death” is defined to mean the irreversible cessation of circulation of blood in the body, or the irreversible cessation of all function of the brain (Human Tissue Act 1982 s41).
  3. An unborn child is not classified as a “human being” for the purposes of murder and manslaughter (R v Hutty [1953] VLR 338).
  4. A child is treated as being “born” (and thus a “human being”) when “he or she is fully born in a living state”. This occurs when the child is “completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother” (R v Hutty [1953] VLR 338).
  5. Any evidence of independent existence will be sufficient for a child to be classified as a “human being” for the purposes of the law (R v Iby [2005] NSWCCA 178).
  6. The mere fact that a child is still attached by the umbilical cord does not mean it is to be regarded as unborn (R v Hutty [1953] VLR 338).
  7. While killing an unborn child will not be murder or manslaughter, it may be child destruction (Crimes Act 1958 s10).

Voluntary Acts

The second element that the prosecution must prove is that the acts which caused the death were voluntary (Ryan v R (1967) 121 CLR 205).

  1. The issue of “voluntariness” concerns, at least, the accused’s conscious control of his or her bodily movements (He Kaw Teh v R (1984) 157 CLR 523).
  2. The terms “deliberate” and “willed” are sometimes used to describe the voluntariness requirement (Ryan v R (1967) 121 CLR 205). [When it comes to “deliberate” and “willed”,  could anything be more so than Acts of Law by a Federal Parliament, or the failure of public servants, police officers, and even Officers of the Court to uphold the constitution, statute laws, and United Nations human rights conventions, treaties and laws?]
  3. In murder trials it is orthodox to describe this element as requiring that the relevant acts be “conscious and voluntary”, or “conscious, voluntary and deliberate”. See R v Schaeffer [2005] VSCA 306. [See my comments above.]
  4. While a judge may use these terms to help explain the voluntariness requirement to the jury (R v Schaeffer [2005] VSCA 306), they do not need to be used in every case. The use of such alternative terms, and the extent to which they need to be explored, will depend on the circumstances of the case. [See my comments above at 25.]
  5. If the term “conscious” is used care should be taken to ensure that it is not equated with voluntary action. The fact that an accused was conscious at the time of an act does not necessarily mean that act was committed voluntarily (see, e.g., R v Edwards [2005] VSCA 92). [See my comments above at 25.]
  6. Knowledge of the circumstances that give an offence its criminal character is generally a component of intention, not volition. Thus an act remains voluntary even if it is performed in ignorance of fundamental facts that will determine culpability (R v O’Connor (1979) 146 CLR 64). [See my comments above.]
  7. While the jury should always be directed to consider this element, where voluntariness is not in issue it need not be examined in detail (Ryan v R (1967) 121 CLR 205).
  8. Terms such as “accidental”, “unintentional”, “involuntary” and “unwilled” all possess a degree of ambiguity. They can be used to signify either that:
    • The accused acts were not voluntary (addressing the second element); or
    • That the accused lacked the requisite intention to commit the crime (addressing the third element) (Ryan v R (1967) 121 CLR 205).

If such terms are used by counsel, the judge should take care to ascertain precisely which element is being addressed, and charge the jury accordingly. [See my comments above at 25.]

Mental States: Intention and Recklessness

  1. The third element that the prosecution must prove is that when the accused committed the acts that caused the victim’s death, s/he either:
    • Intended to kill someone or cause them really serious injury (“intentional murder”); or [See my comments above at 25.]
    • Knew that it was probable that death or really serious injury would result from those acts (“reckless murder”) (R v Crabbe (1985) 156 CLR 464). [See my comments above at 25 and read them in the context of rates of suicide stated on page 29 of the 1998 National Health Priority Areas Report – Mental health, and the causes of suicide and profiles contained in Box 2.2 of this report.]
  2. The accused does not need to have intended to kill or injure the person who actually died, or to have been reckless about killing or injuring that particular person. It is sufficient if they had the necessary level of intention or recklessness in respect of some person, whether or not that was the person who was ultimately killed (La Fontaine v R (1976) 136 CLR 62).[4]

Reckless murder [Breaching – a reckless disregard for the potentially fatal consequences because deaths are not monitored and have even been dismissed as “irrelevant”. You cannot get more ‘reckless’ than that.]

EWRE Irrelevant

  1. It is not appropriate to direct a jury about reckless murder in every case. The jury should only be directed about “reckless murder” where the evidence can properly support a conclusion that the accused acted recklessly (Pemble v The Queen (1971) 124 CLR 107; R v Barrett [2007] VSCA 96).[5]
  2. In the context of murder, to commit an act “recklessly” is to commit that act knowing that someone will probably die or suffer really serious injury (R v Crabbe (1985) 156 CLR 464). [The 1998 National health Priority Areas Report – Mental health, spelt out the risks very clearly, i.e. more people die violently from suiicde than all other forms of violent deaths due to accidents or murder, et cetera, and unemployed people topped the list of people who ‘topped’ themselves. Politicians and bureaucrats knew the risks and considered them to be “irrelevant’.]
  3. The word “probable” means “likely to happen”. It can be contrasted with something that is merely “possible” (R v Crabbe (1985) 156 CLR 464).
  4. To have acted recklessly, the accused must actually have known that death or really serious injury would probably result from his or her acts. It is not sufficient for that danger to have been obvious to the reasonable person, or to the members of the jury (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557; R v Barrett [2007] VSCA 96).
  5. The jury may use the fact that a reasonable person would have appreciated the probability of death or really serious injury to infer that the accused had such an awareness (Pemble v The Queen (1971) 124 CLR 107). [How about the secret classification of these deaths, senate suppression orders, and DHS/Centrelink management failing to collect this information even after the 4 Home Insulation Program deaths and the 3 official inquiries – THEY KNEW, and the are hiding these deaths.]
  6. However, where such reasoning is open the jury must be warned not to conclude that the accused foresaw the probability of death or really serious injury simply because a reasonable person would have appreciated that probability (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).
  7. Use of the word “reckless” should be avoided when charging the jury in murder trials, as it is liable to be confusing (La Fontaine v R (1976) 136 CLR 62).
  8. Similarly, the word “might” should not be used. Recklessness is not established when the accused knew that particular consequences “might occur”. The accused must have known that those consequences “would probably occur” (R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585). [In the 10-year period 1997 to 2006, there were 23,254 suicides and 1 in 3, about 7,700, were unemployed people. There is no ‘might occur’ in thousands of of suicides triggered by unconstitutional, human rights violating acts of total destitution.]
  9. “Probable” is not a mathematical term. The accused does not need to have mathematically weighed the probability of death or really serious injury occurring, and the jury should not attempt to translate the accused’s knowledge into terms of mathematical probability (Boughey v The Queen (1986) 161 CLR 10). [Many members of parliament, perhaps too many, are lawyers with what Justice Duncan Kerr described as “privileged expertise”. Politicians with law degrees like Tony Abbott, Julia Gillard, Malcolm Turnbull, Bill Shorten, Kevin Andrews, Bronwyn Bishop, Julie Bishop, Scott Morrison and Senator Nick Xenophon, as people with law degrees, “OUGHT TO KNOW” (to quote Justice Brennan in Boughey at 10,) that depriving potentially suicidal people of their only means of financial support, i.e. the Dole, could trigger a suicide. Knowing this, these politicians did not help to breach one or two people, but millions.]
  10. It will generally be sufficient if:
    1. The jury is directed to consider whether the accused knew that death or really serious injury was the probable or likely consequence of his or her acts; and
    2. Reference is made to the distinction between what is probable or likely on the one hand, and what is only possible on the other (R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; R v Faure [1999] 2 VR 537).
  11. If a jury is to be directed on both reckless murder and involuntary manslaughter (whether by unlawful and dangerous act or by criminal negligence), it is vital that the directions draw an appropriate contrast between the mental states required for the two offences (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557). See Manslaughter (Topic Not Yet Compete) for further information.
  12. Where recklessness is to be found by inference, the trial judge must identify the relevant evidence, and the inferences which can legitimately be drawn from that evidence (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).
  13. The jury should be directed that the accused’s circumstances are relevant to their determination of his or her state of mind. These circumstances may include age, educational and social background, emotional state and state of sobriety (Pemble v The Queen (1971) 124 CLR 107; R v Barrett [2007] VSCA 96).

Really serious injury

  1. For the third element to be satisfied, the accused does not need to have intended that someone die, or known that death would probably result from their actions. It is sufficient if s/he intended to cause someone serious non-fatal harm, or knew that such harm would probably result.
  2. In Victoria, the degree of harm that must be intended is “really serious injury”.
  3. The phrase “really serious” should be used to properly indicate the gravity of the required intent (Wilson v R (1992) 174 CLR 313; R v Perks (1986) 41 SASR 335; R v Schaeffer [2005] VSCA 306; R v Barrett [2007] VSCA 95).
  4. It appears to be necessary that the “really serious injury” intended or risked should be a bodily This includes unconsciousness (R v Rhodes (1984) 14 A Crim R 124), but may not include purely psychological injuries.
  5. The meaning of “really serious injury” is a matter for the jury to determine. It is unwise to elaborate on its meaning. The law gives only very general assistance to juries in this regard. While some injuries are manifestly too slight and some injuries clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view (R v Rhodes (1984) 14 A Crim R 124).
  6. There is no requirement that the harm intended be a life-threatening harm (R v Cunningham [1982] AC 566.)

Defences to murder

  1. Conduct that would otherwise be murder can be excused or justified by a number of discrete defences, including self-defence, provocation (for homicides committed before 23 November 2005), intoxication, duress and sudden or extraordinary emergency. Each of these defences is examined in detail in Part 8: Defences.
  2. The issue of intoxication may also be of relevance when considering the accused’s mental state. See Intoxication: Bench Notes (Topic Not Yet Complete) for further information.

Order of the Charge

  1. In murder trials it is commonly necessary to direct juries about available alternative verdicts, such as manslaughter.[6] It may also be necessary to direct the jury about a number of different defences or excuses, such as self-defence and provocation. The interrelationship between these issues means that the order in which they are addressed can affect the clarity of the charge.
  2. For offences alleged to have been committed prior to 23 November 2005,[7] it is recommended that judges approach these topics in the following order:
    • The elements of murder;
    • Self-defence (to murder);
    • Voluntary manslaughter (provocation);
    • The elements of involuntary manslaughter;
    • Self-defence (to manslaughter).
  3. For offences alleged to have been committed on or after 23 November 2005 and before 1 November 2014,[8] it is recommended that judges approach these topics in the following order:
    • The elements of murder;
    • Murder self-defence (s9AC);
    • Defensive homicide (s9AD);
    • The elements of manslaughter; and
    • Manslaughter self-defence (s9AE).
  4. For offences alleged to have been committed on or after 1 November 2014, it is recommended that judges approach these topics in the following order:
    • The elements of murder;
    • Self-defence (to murder) (s322K);
    • The elements of manslaughter; and
    • Self-defence (to manslaughter) (s322K).

Jurisdiction

  1. If the victim dies in Victoria, the matter may be tried in a Victorian court, regardless of whether or not the causal acts occurred in Victoria (Crimes Act 1958 s9).

[1] This document was last updated on 2 November 2014.

[2] This type of murder will simply be referred to as “murder” throughout these notes.

[3] Although this element is often said to require the accused’s acts to be “conscious and voluntary”, consciousness is simply one aspect of the broader voluntariness requirement (see, e.g., Ryan v R (1967) 121 CLR 205). This issue is addressed in more detail below.

[4] This is known as the doctrine of “transferred malice”.

[5] See R v Hegarty [2011] VSC 111 for a detailed discussion about the types of situations in which a direction on reckless murder may be appropriate.

[6] See Alternative Verdicts: Bench Notes for guidance concerning the requirement to leave alternative verdicts to the jury.

[7] On 23 November 2005 the Crimes (Homicide) Act 2005 came into effect, introducing two statutory self-defence provisions (Crimes Act 1958 ss9AC and 9AE) and a new offence of Defensive Homicide (s9AD), as well as abolishing provocation. See  See 8.9 Self-Defence and Defensive Homicide for further information.

[8] On 1 November 2014 the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 came into effect, introducing a single statutory self-defence provision for all offences (Crimes Act 1958 s322K), and abolishing the previous statutory murder self-defence, manslaughter self-defence and the offence of Defensive Homicide. See 8.9 Self-Defence and Defensive Homicide.

37.4%

I hope that you found this readable and now understand some of the reasons for this website. If you do, may I recommend that when you vote, that you do not vote for any of the politicians or political parties implicated in the serial murders of thousands of welfare recipients. By doing so, you indicate your support for and approval of these crimes. Only vote for candidates that are NOT linked to Breaching or Centrelink’s fraudulent rip-offs. Basically this means that major party candidates, The greens, family First and current “Independent Members” should all be boycotted because of there lack of concern for the brutal murders of so many vulnerable people. If you are receiving a welfare payment, then you are just 1 of 7 million people who do. You help to make up the largest, and therefore potentially the most powerful, voting group in Australia with a massive 37.4% of the vote.

Boycott, or veto, the major parties and supportive minor parties responsible for the murderous human rights violating breaching laws and they then have to fight for the remaining 62.6% of the vote, which on a 50/50 split would only be 31.3% of the first preference vote per major party. If minor parties pick up 10% of the vote, then the major parties only score a pathetic 26.3% of the vote; well below the 37.4% of the vote that welfare recipients collectively hold.

That’s 6/4 odds in favour of welfare recipients and therefore you should vote very carefully for new candidates and dump or ignore the “Old Brigade”

Ronald Medlicott – A Christian lay advocate for justice in Australia.

 

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