1

The charge of murder against the accused

Actus Reus
1. The basic elements of the actus reus of homicide
The accused here has executed a positive act, where he has struck the victim with a closed
fist. There is also the presumption from an evidentiary standpoint that a conscious person
commits actions voluntarily
1
, and hence, it would be required that the accused disprove this
presumption, which according to the facts of this case, would be impossible as the accused
had control of his bodily movements. It should also be noted that under the legal definition
2
,
the victim has died, as all the functions of the brain have definitively stopped, consistent with
the findings of the post mortem.
2. Did the accuseds conduct cause the death of the victim?
It is necessary to prove beyond a reasonable doubt that the act of the defendant caused the
death of Daniel Sotherby
3
, to satisfy the actus reus element of homicide. The causal link
between the accuseds conduct, the punch to the side of the head, and the death of the victim
is complicated by the fact that the major injury resulted from the victim hitting his head on
the road and the fact that his life support was turned off by his family. The issue of the victim
hitting his head is resolved by the fact that it was the accuseds blow to the head which
caused the victims head to hit the ground with a force which caused the brain injury. The
significant cause test
4
, should be applied in determining whether the causal link still exists
even though the family turned off the victims life support. This test requires that the
original wound is still an operating cause and significant cause
5
of the death at the time of

1
Ryan v The Queen (1967) 121 CLR 205.
2
Human Tissues Act 1993 (NSW) s 33(a).
3
Crimes Act 1900 (NSW) s 18(1)(a).
4
R v Smith [1959] 2 QB 35, 42-3, quoted in R v Blaue [1975] 3 All ER 446.
5
Ibid.
2

death. In this case, the injury to the victim had resulted in his unconsciousness for two days
after the incident, with CT scans showing a massive fracture to the back of the skull and
damage to the brain. The switching off of the life support at this stage was an indication of
the lethality of these injuries, and the irreversible nature of the damage sustained to the
victims brain, as found in the post mortem. Therefore, the wounds sustained by the victim
were a substantial cause of the death, which is enough to satisfy causation in this case.
Mens Rea
3. Intent to kill
As set out in the Crimes Act 1900 (NSW)
6
, one head of murder is whether the accused held
the intention to kill the victim. In the present case, it is highly unlikely that this could be
proved beyond a reasonable doubt. It would be put to the jury to determine based on the facts
whether the single punch and his aggressive, drunken nature formed an intent to kill, and on
these facts I believe the jury would not find an intent to kill beyond a reasonable doubt.
4. Intent to cause grievous bodily harm
Another head of murder that can form the mens rea element for this offence is an intention to
cause grievous bodily harm
7
, where grievous bodily harm as most relevant to this case is
defined in the statute law as any permanent or serious disfiguring of the person
8
and in the
common law as really serious injury
9
. It can be inferred from the conduct of the accused, as
stated previously in part 4, that there is doubt as to the fact of his intention to cause injury to
this degree, and hence it would be very difficult for the crown to convict on this head of
murder.

6
Crimes Act 1900 (NSW) s 18(1)(a).
7
Ibid.
8
Ibid s 4(b).
9
DPP v Smith [1961] AC 290.
3

5. Reckless indifference to human life
This head of murder again in the NSW legislation
10
requires an advertent recklessness, where
the accused foresees a probability that his/her actions could result in death, but commits the
act anyway.
11
In this scenario, it would be highly difficult to prove beyond reasonable doubt
that the accused foresaw his striking of the victim on the side of the face a single time would
probably have resulted in the death of the victim. Again, the single punch element of the
offence makes the accused less culpable for murder as the usually less serious nature of a
single punch would indicate to the jury that the accused did not foresee his relatively minor
aggressive conduct causing the death of the victim.
6. Constructive murder
This element of the statutory definition requires that the death of the victim occur in an
attempt to commit, or during or immediately after the commission of an offence by the
accused punishable with life or 25 years imprisonment.
12
As the act of the accused did not
occur during the commission of a base offence, (such as armed robbery with a dangerous
weapon
13
) this head of murder cant be argued by the prosecution.
The charge of manslaughter by unlawful and dangerous act
Actus Reus
See part 1 and 2 for the reasoning proving that the act of the accused was voluntary and the
act of the accused caused the death of the victim.
7. Did the accused execute the actus reus for an unlawful act?

10
Crimes Act 1900 (NSW) s 18(1)(a).
11
Royall (1991) 172 CLR 378.
12
Crimes Act 1900 (NSW) s 18(1)(a).
13
Ibid s 97(2).
4

It has been established that the accused punched the victim with a closed fist. For the
purposes of this head of manslaughter, it must be proved that the accused executed an act
unlawful in itself
14
, and not merely a breach of statutory prohibitions. In this case, the
accused applying force through physical contact with the victim would constitutes the actus
reus for assault.
15
As assault is in itself an unlawful act
16
, the accused sufficiently executed
the actus reus for an unlawful act.
8. Was the accuseds unlawful act dangerous?
It is also a requirement under the common law that the accuseds unlawful act is inherently
dangerous. The test for dangerousness asks the question of whether a reasonable person in the
position of the accused would have been conscious of the appreciable risk of serious injury
that the unlawful act of the accused subjected the victim to
17
. Another characteristic of the
reasonable person that would be relevant to this case is that the reasonable person must not
take on the idiosyncracies of the accused man or his ephemeral emotional or mental
state.
18
Therefore, the fact that the accuseds mental state was affected by alcohol should not
apply to the reasonable person. The reasonable person would realise an appreciable risk that
the punch could cause serious injury, whether from the punch itself, or the victim falling to
the ground or onto another object as a result of the punch, and therefore the unlawful act of
the accused would most likely be considered dangerous by the jury.
Mens Rea
9. Did the accused intend to cause the unlawful act?

14
Pullman (1991) 58 A Crim R 222 quoted in David Brown et al, Criminal Laws: Materials and Commentary
on Criminal Law and Process of New South Wales, (The Federation Press, 5
th
ed, 2011) 459.
15
David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South
Wales, (The Federation Press, 5
th
ed, 2011) 649.
16
Wilson (1992) 174 CLR 313.
17
Ibid.
18
Wills [1983] 2 VR 201 quoted in David Brown et al, Criminal Laws: Materials and Commentary on Criminal
Law and Process of New South Wales, (The Federation Press, 5
th
ed, 2011) 458.
5

In this scenario, it is much clearer that an intent to physically assault was present in the
accuseds mind, and quite likely could be proved to a jury. The facts that support this include
the aggressive, violent behaviour and language of the accused, as well as the fact he
physically attacked other witnesses and that the force of the blow knocked the victim down
indicate that the accused acted with a purpose to commit the unlawful and dangerous act.
Manslaughter by criminal negligence
The accuseds culpability for this head of homicide is vitiated by the fact that he was not
under a duty of care to the victim. The accused was under no statutory duty of care, nor did
he hold any relationship which forms a duty of care to the victim
19
. Also, the accused did not
voluntarily assume a duty of care at the victim
20
, and therefore the accused cant be convicted
on this head of homicide.
Assault causing death and the aggravated offence
It is required under the recent amendment to the Crimes Act 1900 (NSW) that the defendant
intentionally assaults the other person by hitting him/her with any part of the body
21
, the
assault is not excused by the law
22
and that the assault causes the death of the victim
23
,
whether the injuries which cause the death are a direct result of the assault or from hitting the
ground as a direct consequence of the assault
24
. The fact that the accused physically assaulted
the victim and intended to assault was examined in part 7 and 9 respectively, with the causal
link between the physical application of force and the death being proved in part 2. In this
scenario, it would be very difficult for the defence to provide a legal excuse for the accuseds

19
R v Taktak (1988) 14 NSWLR 226.
20
Ibid.
21
Crimes Act 1900 (NSW) s 25A(1)(a).
22
Ibid s 25A(1)(b).
23
Ibid s 25A(1)(c).
24
Ibid s 25A(3).
6

behaviour, due to the accuseds aggression. Therefore, the facts of this case fulfil the
statutory requirements for assault causing death.
The aggravated version of this offence requires that the accused be intoxicated at the time
of commission of the alleged offence
25
, where intoxication is conclusively presumed when a
test for alcohol content finds a reading of 0.15 grams of alcohol in 210 litres of breath or
100mL of blood
26
. The test must be carried out within two hours of the alleged offence if it is
a breath analysis
27
or four hours if it a blood or urine analysis
28
to be legitimate evidence, and
in this scenario, no testing for the presence of alcohol in the accused has occurred. Therefore,
other evidence, such as the CCTV footage and witness statements must prove beyond a
reasonable doubt that the accused was intoxicated to the degree required to prove the
aggravated offence. In this scenario a possible argument can be seen for the aggravated
offence, due to the CCTV footage and the barmans statement, however, it is ambiguous as to
whether the evidence will be conclusive enough to prove intoxication.
Overall conclusion and recommendations
It is recommended that the Crown does not pursue a murder conviction, as the mens rea
elements of the crime would most likely not be able to be proved beyond reasonable doubt.
Instead, it is recommended that the Crown pursue the assault causing death conviction,
including the aggravated version of the offence, as the statute applies convincingly to the
facts, and the likelihood of convincing the jury beyond reasonable doubt is quite high.
Manslaughter by unlawful and dangerous act could also be successfully prosecuted.

25
Ibid s 25A(2).
26
Ibid s 25A(6)(b).
27
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 138F(3).
28
Ibid s 138G(3).
7

Bibliography
A. Articles/Books/Reports
Brown, David et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of
New South Wales, (The Federation Press, 5
th
ed, 2011)
B. Cases
Ryan v The Queen (1967) 121 CLR 205
R v Blaue [1975] 3 All ER 446
DPP v Smith [1961] AC 290
Royall (1991) 172 CLR 378
Wilson (1992) 174 CLR 313
R v Taktak (1988) 14 NSWLR 226
C. Legislation
Crimes Act 1900 (NSW)
Human Tissues Act 1993 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)