Problem question and sample answers1

SAMPLE ANSWER ONE - FAIL

Issue

Does River’s conduct make her criminally liable for murder or manslaughter?

Rule

s. 18 Crimes Act 1900 (NSW)

Woolmington v DPP, [1935] AC 462
Ryan v R 121 CLR 205
R v Hallett [1969] SASR 141
R v Crabbe (1985) 156 CLR 464
Royall v R, (1991) 172 CLR 378
Nydam v The Queen [1977] VR 430

Application

River’s conduct of giving the worn-out ropes to Sam and Kai might make her guilty of
murder as she did this intentionally. However, if it was not intentional then it may be
manslaughter, as she was criminally negligent and failed in her duty of care.

Conclusion

Definitely involuntary manslaughter. Could possibly be murder if the intention element is

proven beyond reasonable doubt.

1
Developed by Dr Amira Aftab (2021).
SAMPLE ANSWER TWO – MAYBE A PASS?

Introduction

In Howie, Sattler and Hood’s Criminal Law and Procedure in New South Wales it is stated
that there are different types of offences that come under the broad umbrella of homicide
(this is also understood as unlawful killing). The two main types of offences are murder and
manslaughter. There are also two types of manslaughter, voluntary and involuntary.
Voluntary manslaughter is where all the elements required for murder are present but there
is a partial defence available to the accused, which reduces the charge from murder to
involuntary manslaughter. In relation to the interesting scenario presented, this discussion
will consider whether the crime is murder or manslaughter.

As we can see from scenario, River is the manager of a rock-climbing service and venue, who
had an affair with Kai. Kai brings his partner Sam to learn how to rock climb after breaking
off the affair with River. River is possibly upset and knowing the ropes are faulty gives them
to Kai and Sam. Sam falls and dies because of the faulty rope. Considering the series of
events that follow we must consider whether River murdered Sam or whether it was
unintentional and therefore involuntary manslaughter.

Issue

In this scenario the issue that arises is whether or not the act of River providing worn out
ropes to Sam and Kai is murder or involuntary manslaughter. The legal issues raised here is
whether River’s act was voluntary and caused Sam’s death. If so, there would also need to
be an element of mens rea that temporally coincides for her to be found guilty. If this
cannot be shown, then the second issue to consider is whether River’s act is involuntary
manslaughter. There are two types of involuntary manslaughter – unlawful and dangerous
act manslaughter and criminally negligent manslaughter. The latter is likely the most
relevant here.

Rule

Before considering the common law surrounding murder and manslaughter, the relevant
section of the Crimes Act 1900 (NSW) is section 18, which outlines the elements of murder
and also notes that if not murder it may be manslaughter. The elements of murder are the
physical elements (actus reus) and the mental or fault elements (mens rea). These elements
need to temporally coincide, which means they need to occur at the same time. There are
some exceptions to temporal coincidence, that is where there is a series of acts or a
continuing act.

It is also important to note that the prosecution needs to prove these elements beyond
reasonable doubt. This is outlined in the case of Woolmington v DPP, [1935] AC 462 which
notes the ‘golden thread’ principle that states “Throughout the web of the English criminal
law one golden thread is always to be seen – that is the duty of the prosecution to prove the
prisoner’s guilt…if at the end of and on the whole case, there is a reasonable doubt, created
by the evidence…the prosecution has not made out the case and the prisoner is entitled to
an acquittal”. As this shows, the prosecution needs to prove beyond reasonable doubt.

In terms of the physical elements or actus reus, this can be an act or omission. It needs to be
voluntary, and it needs to have caused the consequence, in this case, the death.

To understand voluntariness, we can look to the Ryan v R 121 CLR 205 (‘Ryan’) case which
states that the conduct must be a “wilful or conscious act”. In that case the court looked at
the context surrounding the acts, and the probable consequences of those acts. As such,
when the relevant sequence of acts leading up to that point is viewed holistically, it is
evident that a voluntary chain of events caused the death and not the actual pulling of the
trigger.

According to Windeyer J in the case of Ryan “Such phrases such as reflex action and
automatic reaction if used imprecisely and unscientifically are mere excuses, is an act to be
called involuntary merely because the mind worked quickly and impulsively?.....I have come
to the conclusion that if the applicant, being conscious of the situation in which he had put
himself, pressed the trigger as a result, however, spontaneous, of the man whom he was
threatening making some sudden movement, it could not be said that his action was
involuntary so as to make the homicide guiltless”.

Therefore, in determining voluntariness, this case is authority that the court looks at the
whole context of acts, and the probable consequences of those acts, rather than just the
'startle moment'. Further that it allows for a “complex of acts’ to be considered, therefore,
simply because one act can be seen as objectively voluntary, or a reflex does not mean that
the lead up of events are merely overlooked so long as the series of acts are
contemporaneous to the voluntary act. Further, the case of Murray [2002] HCA 26; 211 CLR
193 allows for particular elements of a ‘composite set of movements’ to be considered, and
for an act to comprise a set of movements to be taken as a whole (Gummow and Hayne JJ),
which assists us on identifying the relevant voluntary act which caused the punch to Hani.

There are a number of legal tests for causation. The test most commonly used by the
reasonable foreseeability test, the natural consequence test, and the operating and
substantial cause test. This is outlined in Royall v R (1991) 172 CLR 378, where McHugh J
notes that the most commonly used test in the courts is the latter one – the operating and
substantial cause test. This test is explained in R v Hallett [1969] SASR 141 at 149, where it
states that “The question to be asked is whether an act or series of acts…consciously
performed by the accused, is or are so connected with the event that it or they must be
regarded as having a sufficiently substantial causal effect, which subsisted up to the
happening of the event, without being spent or without being in the eyes of the law
sufficiently interrupted by some other act or event.”

There are also three types of fault elements (or mens rea) relevant to murder. These are
intention to kill, intention to inflict grievous bodily harm, and reckless indifference to human
life. This is outlined in section 18(1)(a) of the Crimes Act 1900 (NSW). Intention to kill
requires proof that the accused intended death to come from the particular conduct, this
was noted in R v Crabbe (1985) 156 CLR 464. Intention to inflict grievous bodily harm, is also
noted in R v Crabbe (1985) 156 CLR 464 at 460-70 and is where someone does the act
knowing that “it is probable that death or grievous bodily harm will result” and will
therefore be guilty of murder. This was also discussed in the case of Royall v R, (1991) 172
CLR 378 at 395
but that case states that in NSW it only needs to be probable that death will be the
consequence. Reckless indifference to human life is where there is knowledge that death
will probably result from the actions. The prosecution needs to show that one of these
mens rea elements exist.

If these elements of mens rea cannot be proven beyond reasonable doubt by the
prosecution, then they will likely turn to and pursue a charge of involuntary manslaughter.
Involuntary manslaughter does not require evidence of a subjective mens rea elements, like
murder. There are however two types of manslaughter, but the most relevant here would
likely be the criminally negligent manslaughter. This was discussed in the case of Nydam v
The Queen [1977] VR 430. In this case the accused threw petrol on two women and ignited
it. He claimed that he only intended to kill himself. Nevertheless, the court stated that “such
a great falling short of the standard of care which a reasonable [person] would have
exercised and which involved such a high degree of risk that death or grievous bodily harm
would follow that the doing of the act merit criminal punishment” (Nydam v The Queen
[1977] VR 430 at 445).

Application

In this scenario we can conclude that if the prosecution can show that actus reus and mens
rea it will be murder. River’s act appears to be voluntary as she chose to give the faulty
ropes to Sam and Kai. This might also suggest intention to kill and/or inflict grievous bodily
harm as she intentionally gave the ropes to them. She was also likely upset with Kai for
breaking off the affair and was jealous seeing them be affectionate towards each other.
However, if River thought that the ropes were still safe to use while waiting for the
replacements, then that may not satisfy these two intent elements. Alternatively, it might
also be reckless indifference to human life if the prosecution can show that the outcome of
either Sam or Kai falling was probable. However, without satisfactorily proving a mens rea
element beyond reasonable doubt, the prosecution will not be able to successfully argue
that River murdered Sam. If it is not murder, then we can consider if it is involuntary
manslaughter in the form of criminally negligent manslaughter. River had a duty of care and
failed to follow through with this. A reasonable person would have known that it was unsafe
to use the faulty ropes, therefore it can be argued to be manslaughter.

Conclusion

River is guilty of manslaughter. River might be guilty of murder if mens rea can be proven
beyond reasonable doubt.
SAMPLE ANSWER THREE – MAYBE A DISTINCTION (DEFINITELY NOT A HD)

Introduction

In this scenario, the prosecution will most likely charge River for murder in accordance with
s.18 of the Crimes Act 1900 (NSW) (‘Crimes Act’). If the prosecution is unsuccessful in
proving murder, then they may pursue a charge of involuntary manslaughter. The
prosecution needs to prove required elements (actus reus and mens rea) beyond reasonable
doubt (R v Evans and Gardiners (No 2)) The following analysis considers whether River’s
action was a voluntary act or omission that caused Sam’s death. It also examines whether
the required mens rea was present at the time of the death.

Murder - Actus Reus

The prosecution must establish that River’s conduct constitutes a voluntary act or omission
that caused Sam’s death. If the prosecution argues that River’s conduct is an omission, they
will need to demonstrate that a duty of care existed in the circumstances.

Issue: Was River’s conduct a voluntary act or omission?

River did not immediately replace or take the worn out ropes out of use. River may be liable
for this omission if it can be established that River created a dangerous situation and then
did not take any steps to remedy and prevent harm to the victim (R v Miller). However, it is
more likely that the prosecution will argue that this was a voluntary act. This voluntariness
exists at two points. The first being River’s decision to keep the ropes in use despite the
warning label from the manufacturer saying otherwise. The second being wilfully and
consciously assigned Sam and Kai to the wall with the fraying ropes (Ryan v R).

Issue: Did River’s conduct cause Sam’s fall and subsequent death?

The second point the prosecution needs to prove beyond reasonable doubt (Woolmington v
DPP) is that River’s conduct caused Sam’s death. There are a number of legal tests for
causation. The test most commonly used by the courts is the operating and substantial
cause test (Royall v R; R v Pagett). This test requires the prosecution to demonstrate that
the actions of the accused contributed substantially to the death of the victim. River’s act of
assigning the wall with frayed ropes to Sam and Kai substantially contributed to Sam’s
death. If River had taken the ropes out of use or not consciously re-assigned the wall with
these faulty ropes to Sam and Kai, then Sam would not have fallen to their death.

Murder - Mens Rea

With the actus reus clearly established above, the prosecution will need to show that one or
more types of mens rea exists. There are three types of mens rea that may be present for
murder, this is intention to kill; intention to inflict grievous bodily harm; and reckless
indifference to human life (s.18(1)(a) Crimes Act).

Issue: Was there an intention to kill?

Murder is an offence that requires a specific result or consequence (death) and the
prosecution must show that River intended to cause the death of either Kai and Sam, or
both. The principles of transferred intention means that it does not matter if River intended
to kill Kai or Sam specifically but caused the death of the other, that intention transfers to
the victim. Fundamentally, the prosecution does not need to show that River intended to
cause the death of a particular person (R v Crabbe).

In terms of when the intent arose, River did not have intent to kill Kai or Sam when
conducting safety and inventory checks the week before. There is no evidence to show that
River had kept the ropes in use with the intent to assign it to them and cause one or either
of their death. In fact, River had clear plans to not use them unless it was a particularly busy
day at the venue. It is likely that falling suddenly from 200 metres could lead to death.

Issue: Was there an intention to inflict grievous bodily harm

Similar issues arise for intention to inflict grievous bodily harm as they do for intention to
kill, as outlined above in relation to transferred intention. Perhaps more so than intention to
kill, causing someone to fall from a great height due to faulty rope would likely constitute
intention to inflict grievous bodily harm. River giving Kai and Sam the fraying ropes at the
last minute when they were checking in could be argued as demonstrating her intent inflict
grievous bodily harm.

That said, with intention being determined subjectively, and River clearly believing that the
ropes were safe to continue using until the new replacements arrived, it would be difficult
for the prosecution to prove intent to kill or intent to inflict grievous bodily harm beyond
reasonable doubt.

Issue: Did River display a reckless indifference to human life?

Reckless indifference to human life is understood as being where a person does an act
knowing that it is probable that death or grievous bodily harm will result (R v Crabbe). In
NSW, reckless indifference to human life is where the result is probable death, probable
grievous bodily harm is insufficient (Royall v R).

Here, the prosecution needs to prove that River knew, in her own mind, that using worn out
ropes would probably cause death. There must be a subjective awareness that there is a
substantial or real chance of the consequence eventuating, not just a mere possibility
(Royall v R; Boughey v R).

It can be assumed that as a trained rock-climber and manager of the venue that River knew
that there were some risks in using the frayed ropes, particularly as River placed an order
for new ropes. Even though River planned on keeping them in use until the replacements
arrived knowing that the manufacturer warning said otherwise, this is not enough to
demonstrate that there was a subjective awareness of a substantial risk that is real and not
remote. If River intended to keep the ropes in use permanently and not replace them, then
perhaps reckless indifference could be successfully argued.
As it seems unlikely that the prosecution can prove mens rea existed beyond reasonable
doubt, there is no need to consider the temporal coincidence with the actus reus.

Involuntary Manslaughter

Issue: Does River’s act constitute involuntary manslaughter?

Since it is unlikely the prosecution can prove River is guilty of murder, and it also unlikely to
be a case of voluntary manslaughter as that has the same requirements of actus reus and
mens rea, the prosecution can pursue a charge of involuntary manslaughter.

There are two forms of involuntary manslaughter. The first is unlawful and dangerous act
manslaughter, and the second is criminally negligent manslaughter. As River’s act is not
unlawful, and not likely to be considered unlawful to the required degree of seriousness,
this type of manslaughter is not relevant in the present case.

Criminally negligent manslaughter is understood via the test of whether the act falls short of
the standard of care that a reasonable person would have exercised, that a high risk of
death or grievous bodily harm would follow the act and warrant criminal punishment
(Nydam v R). This is an objective test and does not require consideration of whether River
knew her acts were risky or unsafe (R v Lavender). This test also draws on a reasonable
person that would have any relevant specialist knowledge that River possesses (R v Wills) -
so rock-climbing expertise and safety knowledge.

The prosecution needs to prove that the standard of care River exercised in serving Sam and
Kai and providing the ropes fell short of the standard of care a reasonable rock-climbing
instructor and manager of a rock-climbing venue would exercise. They would also need to
show that the actions involved such a high risk of death that it deserves criminal
punishment. We can presume that a reasonable rock-climbing instructor and manager
would have taken the ropes out of circulation as per the manufacturer warning. The risk of
death from equipment malfunctioning in the context of rock-climbing on an outdoor cliff-
face is also fairly self-evident. The question of whether River keeping the ropes in use falls a
great way short, not just merely short, of the standard of care is one for the jury to decide. It
seems more likely than not that a jury would find River’s conduct falling a great way short of
the standard of care required and expected.

Conclusion

Based on this analysis, it is more than likely that the court would conclude that while River’s
act of assigning the frayed ropes to Sam and Kai may be voluntary and caused Sam to fall, it
does not constitute murder as mens rea has not been proven beyond reasonable doubt. It
seems more likely than not that the court would find River guilty of involuntary
manslaughter.