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Fact scenario: As part of gangland dispute, Fred decided that Sam needed to be taught

a lesson. One night while Sam was walking between Bondi and Tamarama beaches

Fred attacked Sam beating him severely with an iron bar. As a result, Sam lay

unconscious near the edge of a cliff. Having regained semi-consciousness he got to

his feet but fell 20 feet to the rocks below. This did not kill Sam but he did die whenthe tide came in and drowned him.

Could Fred be liable for murder and is there an issue of coincidence?

Introduction:

The jurisdiction is NSW, as the alleged offence took part between Bondi and

Tamarama. The NSW Crimes Act applies, and all reference are to it unless

otherwise stated. The prosecution must prove beyond reasonable doubt that

Fred committed all elements of the offence (Woolmington v DPP). Section

18(1) a of the Crimes act 1900 (NSW) pertains to murder:

AR:

1.) There must be an act or omission, which is voluntary.

2.) The act or omission must cause the death charged.

MR:

The act or omissions must have been done:

1.) With reckless indifference to human life; or

2.) With intent to kill; or

3.)

With intent to commit grievous bodily harm; or4.) While attempting or during or immediately after the accused or an

accomplice was committing a crime punishable by life or 25 years.

Did Freds act result in the death of Sam?

On the facts it would appear that Freds acts of severely beating Sam with an

iron bar was voluntary. The prosecution must prove that Freds actions resulted in

Sams death. InRoyall v R (1991) 172 CLR 378 the High Court discussed the various

legal tests for determining causation at common law; the operating and substantial

cause test; the natural consequence test; the reasonable foresight of the consequences

test; and the novus actus interveniens test. The prosecution must establish an

unbroken chain of causation from Freds actions to Sams death.

In order to prove causation there must be a link between an act of D and the death

charged without which it wouldnt have happenedRoyall (1991) 172 CLR 378.

On the facts, it may be posited that but for Fred beating Sam severely with an iron

bar, Sam would not have fallen off the cliff and drowned. A new intervening

unpredictable act (novus actus interveniens) can break the chain by taking over as the

dominant cause of harmSmith[1959] 2 QB 35. The defence may attempt to argue

that the beating was not the cause of Sams death, and in fact the true cause of death

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was drowning consequent of falling off the cliff. However, the prosecution may refute

that Freds actbeating Sam with an iron bar in the between Bondi and Tamarama,

where cliffswere in the immediate vicinity made it reasonably foreseeable that Sam

would fall and drown. Predictable events do not break the chainHallett [1969]

SASR 141. In addition, the Ds act need not be the sole cause of death, it can operatewith other causal events but must represent more than a mere de minimus and be a

substantial causeHallett [1969] SASR 141. On the facts it may be argued that

Fred beating Sam severely with an iron bar may be designated as a more than a mere

de minimus in determining Sams death, as Freds act resulted in Sam being subject

to the causal event (falling of the cliff) and accordingly resulted in his death by

drowning.

Did Fred intend to kill Sam?

Proof of Mens Rea must coincide with the Actus Reus. There are three

possible heads of murder to be considered. First, to establish an intent to kill there is a

subjective test that the accused acted in order to achieve a particular purpose, that is,

to kill the victim. The accuseds actions and words may provide the most convincing

evidence of his intention. Freds action of severely beating Sam with a iron bar, in

conjunction with his intention to teach him a lesson, may indicate that the attack did

not amount in whole to an intention to kill. However, the premeditated nature of the

encounter may serve to indicate that requisite Mens Rea existed to kill, beyond a

reasonable doubt.

Second, an intention to commit grievous bodily harm involves a subjective

test of the accused setting out to cause really serious bodily harm. It is inferred on thefacts that Fred set out to inflict grievous bodily harm on Sam, as his conduct of

beating Sam with an iron bar in order to teach him a lesson serves to indicate this as

the primary intention. Grievous bodily harm is defined in section 4 of the Crimes Act

1900 (NSW), and includes permanent or serious disfigurement of the person and

DPP v Smithextends to really serious injury. Beating Sam unconscious may

indicate that Fred had an intention to inflict really serious injury.

Thirdly, Fred may be reckless in that the prosecution must prove beyond

reasonable doubt that he committed the act knowing it was probable that death

or grievous bodily harm would result. The test is subjective, involving the accusedsforesight of a risk of the probability of death or really serious injury, and then taking

that risk in the circumstances. On the facts, it may be inferred that Freds act of

severely beating Sam with an iron bar, to the point of unconsciousness, would serve

to indicate that Fred had committed the act with the foresight that death or grievous

bodily harm would result. This point is further strengthened by the fact that Sam was

left in the vicinity of a cliff face, which increases situational risk and increases the

likelihood of death.