Clark case flying fox

Hoffman (piece of metal thrown from train)

R v officer (driving vehicle along dark road with no lights on) = no intent to run someone
over, so purpose and consequence were different, as in this case but an intention to avoid it.
R V O’HALLORAN (boy shoots dad with rifle, apparently with no intent to kill) = criminal
negligence = per Mack J at 8: can apply even if the acts were done deliberately or wilfully,
with a full appreciation of the risk, but an intention to avoid it. On appeal the offence of
manslaughter should’ve been left to the jury, they changed it to manslaughter on appeal. If
you intend the consequence you won’t be in 289. Can be deliberate, but outcome can’t be
intended.

R v Hodgetts and Jackson [1990] 1 Qd R 456= Recklessness that involved gross negligence =
grave moral guilt to = criminal negligence.
S 289

Kawani = domestic violence incident the man shot the gun with evidence of faulty gun and
that when gun went off and shot and killed the partner it wasn’t meant to shoot. Evidence
was in dispute as to whether he did or didn’t intend to shoot. Was convicted on the facts of
murder, even though there was evidence of an act independent of will. If you charge
somebody like Kowani under usual 302.1.8 there is a defence of acts independent of will,
however if u charge under crim negligence u can’t use that defence.

Court of appeal accepted that you could convict someone of murder pursuant to 289 but
this has been unanimously in the past 2 weeks

s289 dangerous thing: not inherently dangerous like a knife or a gun

Is unlawful killing murder or manslaughter?

291 defines unlawful killing
if causation can be established via the current test or via criminal negligence provisions –
ask whether the unlawful killing was murder or manslaughter s302
s300 unlawful killing is either murder or manslaughter

302.1
302.1.b. where the death occurs as the result of some dangerous act which the offender
does in the prosecution of an unlawful purpose. In the process as the accused of committing
an offence, e.g. burglary = performing with prosecution of unlawful purpose. [does assault
qualify as prosecution of unlawful purpose]. Does not require an intention to kill or to do
GBH

Crown’s arguments:
1. Bill deliberately shot at Trudie meaning to hit her, with the intent to kill or GBH
2. Bill negligently caused the shot to hit Trudie and violated duty, but fired with intent
to kill or GBH
3. Bill committed a dangerous act made in the prosecution of an unlawful purpose that
resulted in Trudie’s death
302.1.a: intention to cause death or GBH (s1 defines GBH: likely to cause permanent injury
to health includes permanent disfigurement loss of body part or organ of body)
- no definition of intention in crim code, so look to common law
- Purpose intention = whole purpose of action is to bring about the death (or GBH) of the
person. This kind of intention is the only kind that will ground a charge on intentional
murder in the Code. [If you can disprove Bill’s intent, then he cannot be guilty of 302.1.a,
and he did not intend on the facts]
- Foresight intention: proceed in action with knowledge that death is highly probably result,
this doesn’t apply in QLD. [So even though Bill would likely cause GBH or death by firing
shot, he isn’t done for murder?]
- Common law in Australia: either purpose intention, or knowledge of death as probable
(this is different to foresight intention because it’s a separate element, and not just a
broader definition of intent.)
Foresight consequence is different foresight intention
You can know something will occur (even certainly) but it doesn’t mean you intend to. In
Qld it can be inferred that if you have knowledge when you act, that you intended the
consequences, but that doesn’t mean it’s a part of the definition of intention. [Bill says he
did not intend to cause death or GBH, jury is entitled to infer if they decide he had
knowledge]

On the facts Bill didn’t intend the death or GBH or Trudie, also considering the faultiness of
the weapon, it can be seen as an accident, however the jury is entitled to infer intention
based on the presumed knowledge that death or GBH was a likely consequence of firing the
weapon, whether or not therefore Bill had an intention to commit an offence. (Woollin)
“the jury is not entitled to infer the necessary intention unless they feel sure that death of
serious bodily harm was a virtual certainty” (Nedrick)
Knowledge of probability (virtual certainty)  jury entitled to infer intention
The converse is not true, see below:
If you intend to bring about consequence  you must also foresee it

R v Moloney: gun was pointing at father, but was he aiming? Bc they hadn’t excluded
beyond reasonable doubt that he wasn’t aware, the murder was overruled. The son said he
didn’t intend to shoot at or near with intent to scare, harm or kill. Bill didn’t intend to shoot
at all. If you are aware, the inference is irresistible to conclude that there was intent.

R v Hancock and Shankland: only intended to block the route, scare or intimidate the miner.
Was that possibility sufficiently excluded on the facts? The trial judge said that it wasn’t
necessary because foresight or resources probable would be enough – and that’s not the
law. Reference to “natural consequences” in Lord Bridge’s proposed direction is misleading.
Jury should be directed that the consequences need to be foreseen as probable, where
“probable” means little short of overwhelming. [Jury was told greater than 50%]
we know that if you intend murder, but kill the wrong person, you’re still guilty but if you
don’t intend murder you might get off.
Nedrick: We can’t rely on foresight alone as giving us intention that is why the judges
remarks were not appropriate,

Manifestly dangerous = there’s room for an intention other than death, it’s at least plausible
to say the intention is only to scare, intimidate, or frighten. [Bill, having no knowledge of its
function, can be said to plausibly not foresee (and thus jury cannot infer intent) the death or
GBH as the slingshot was manifestly dangerous i.e. was not a gun or something of that
nature,]

Hancock and shankland, Nedrick, Hyam: foresight alone isn’t sufficient in finding intent.

Moloney: you can do something with regret, and demonstrate you do not have a desire to
do it, but still have intention. IGNORE THIS Q due to zaberoni

302.1.b
An unlawful killing will be murder if death is caused by means of an act done in the
prosecution of an unlawful purpose, which is of such a nature as to be likely to endanger
human life
302.3
Under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person.

- This provision postulates circumstances in which an unintentional killing will

nevertheless be murder
- 3 elements:
o A dangerous act
o An unlawful purpose
o The act was done in prosecution of that unlawful purpose
A dangerous act: is determined objectively
- The question of whether the act is likely to so endanger is objective and up to the
jury as reasonable people informed by experts if necessary (Gould v Barnes,
according to Townley J) [ie Judge shouldn’t direct]
- Hind v Hardwood (1995) 80 A Crim R 105 per Fitzgerald P – “likely” does not mean it
is more probable than not that the act would endanger life, it purely means that
there is a real and not a remote chance and it is not a case of it being more than a
50/50 chance. [Judge shouldn’t have defined as greater than 50%]
- Unlawful purpose
o There must be a separation between the unlawful purpose and the
dangerous act. In Gould v Barnes, the unlawful purpose had been to procure
and abortion, and dangerous act was introducing the liquid into the uterus
o How much separation is required?
 R v Hughes – dangerous could be merely an assault, but must be
assaulting the victim in pursuit of some other unlawful purpose. In
this case assault was both the unlawful purpose and the dangerous
act – so only convicted of serious assault
 o Stuart v R – in extortion attempt set fire to drum of petrol in club. Didn’t
intend GBH or death, but people died of asphyxiation. HC said that setting
fire to something in prosecution of unlawful purpose of arson met the
separation requirement. So separation required very minimal (unlawful
purpose also could’ve been extortion, not just arson).
o In Hughes, the dangerous act causing death was a violent assault, but the
accused had no purpose other than to assault the deceased.
o [Bill’s unlawful purpose was to assault Trudie, his dangerous act was the
loading and firing of the slingshot]
o There’s a shit dude called Gibbs who described unlawful purpose and
dangerous act as pretty much the same thing, so although separation is
necessary it can be satisfied with something so minimal. This has received a
lot of criticism but that doesn’t mean it can be thrown out as a precedent,
however you can try and argue against it.

Def of manslaughter is s303

S576.1&2 are important