Try the new Google Books
Check out the new look and enjoy easier access to your favorite features
[5-1110] Suggested direction — mental element of murder
The Crown has to prove beyond reasonable doubt that, at the time [he/she] did the deliberate act which caused the death of [the deceased], [the accused] had an intention to kill the deceased, or an intention to inflict grievous bodily harm upon [him/her], or that the act which caused death was done with reckless indifference to human life. This is the second element of the basic ingredients of murder. It is often referred to as the mental element of the offence of murder which the Crown has to prove beyond reasonable doubt.
These three states of mind are separate and distinct. The Crown needs to prove beyond reasonable doubt that [the accused] had any one of them at the time [he/she] did the act causing death. In relation to the mental element of the crime of murder, what the Crown has to prove is the state of mind of the accused at the point of time of the act causing death.
[If there is an issue about the act causing death the various alternatives should be addressed.]
Of course, you can infer or conclude what a person’s state of mind is at any particular point from a consideration of the person’s state of mind leading up to that particular time and sometimes afterwards. You do not take the particular point of time out of the context in which it occurred. You look at it as part of a series of events that took place, both before and after the act causing the death of the deceased occurred.
Intention
I will explain the first two states of mind — an intention to kill or inflict grievous bodily harm — together since they are related.
For the offence of murder, the Crown has to prove beyond reasonable doubt that, at the time [he/she] committed the deliberate act that caused the deceased’s death, [the accused] did that act with either an intention to kill or an intention to inflict grievous bodily harm upon [the deceased]. Grievous bodily harm is simply bodily injury of a really serious kind. This type of injury does not have to be permanent or even life threatening. You decide what sort of injury would be described as being really serious because that is an issue of fact for you.
Intent and intention are very familiar words. In the legal context in which we are considering them, they carry their ordinary everyday meaning. A person’s intention may be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused person before, at the time of, or after he or she did the specific act which caused the death of the deceased. In some cases, a person’s acts may provide the most convincing evidence of his or her intention at the time. Where a specific result is the obvious and inevitable consequence of a person’s act, and where the person deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that particular result.
In this case …
[Outline the Crown’s argument concerning the evidence of the accused’s intention and any counter arguments by the defence.]
So the first two states of mind which are necessary for the crime of murder are either, that [the accused] had an intention to kill [the deceased], or an intention to inflict really serious bodily injury upon [him/her].
Reckless indifference
The third state of mind, which the Crown relies upon to prove murder, is known in legal terms as reckless indifference to human life. If, at the time [the accused] committed the act that caused the death of [the deceased], [he/she] foresaw or realised that this act would probably cause the death of [the deceased] but [the accused] continued to commit that act regardless of that consequence, then [the accused] would be guilty of murder.
What is at the nub of this mental state is that [the accused] must foresee that death was a probable consequence, or the likely result, of what [he/she] was doing. If [the accused] did come to that realisation, but decided to go on and commit the act regardless of the likelihood of death resulting, and if death does in fact result, then [the accused] is guilty of murder. The conduct of a person who does an act that the person knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who commits an act with a specific intention to cause death.
For this basis of murder, [the accused’s] actual awareness of the likelihood of death occurring must be proved beyond reasonable doubt. It is not enough that [he/she] believed only that really serious bodily harm might result from [his/her] conduct or that [the accused] merely thought that there was the possibility of death. Nothing less than a full realisation on the part of [the accused] that death was a probable consequence or the likely result of [his/her] conduct is sufficient to establish murder in this way.
Again, you are concerned with the state of mind that [the accused] had at the time [he/she] committed the act causing death. What you are concerned about when considering the mental element of the offence of murder is the actual state of mind of [the accused], that is, what [he/she] contemplated or intended when [the act causing death] was committed.
Katrine Del Villar, Ben White, Eliana Close et al, ‘Voluntary Assisted Dying by Practitioner Administration Is Not Suicide: A Way Past the Commonwealth Criminal Code?’ (2022) 29(1) Journal of Law and Medicine 29-141.
Ben White, Lindy Willmott, Katrine Del Villar et al, 'Who is eligible for voluntary assisted dying? Nine medical conditions assessed against five legal frameworks' (2022) 45(1) University of New South Wales Law Journal 401-444.
Marcus Sellars, Ben White, Patsy Yates et al, ‘Medical practitioners’ views and experiences of being involved in assisted dying in Victoria, Australia A qualitative interview study among participating doctors’ (2022) Social Science & Medicine 292.
Ben White, Eliana Close, Lindy Willmott et al, ‘Comparative and critical analysis of key eligibility criteria for voluntary assisted dying under five legal frameworks’ (2021) 44(4) University of New South Wales Law Journal 1663-1700.
Lindy Willmott and Ben White, ‘The Challenging Path to Voluntary Assisted Dying Law Reform in Australia: Victoria as a Successful Case Study’ in White, Ben White & Lindy Willmott (eds), International Perspectives on End-of-Life Law Reform: Politics, Persuasion and Persistence (Cambridge, United Kingdom, 2021) 84-112.
Moira O'Connor, Charlene Martin, Lindy Willmott, et al, ‘Australian Health Professionals’ Attitudes toward Voluntary Assisted Dying: A Cross-Sectional Survey’ (2021) 10(11) Social Sciences.
Eliana Close, Katrine Del Villar, Lindy Willmott et al, ‘Voluntary assisted dying and telehealth: Commonwealth carriage service laws are putting clinicians at risk’ (2021) 215(9) Medical Journal of Australia 406-409.
Eliana Close, Lindy Willmott and Ben White, ‘Regulating voluntary assisted dying practice: A policy analysis from Victoria, Australia’ (2021) 125(11) Health Policy 1455-1474.
Sarah Philippkowski, Moira O'Connor, Maarten C Eisma et al, ‘Does Voluntary Assisted Dying Cause Public Stigma for the Bereaved? A Vignette-Based Experiment’ (2021) 19(5) Palliative and Supportive Care 558-562.
Jessica Young, Janine Winters, Jeanne Snelling et al, ‘The End of Life Choice Act: a proposed implementation and research agenda’ (2021) 134(1544) New Zealand Medical Journal 145-158.
Ben White and Lindy Willmott, Voluntary assisted dying research: a policy briefing. Australian Centre for Health Law Research, Queensland University of Technology, 2021.
Lindy Willmott, Katrine Del Villar, and Ben White, 'Voluntary assisted dying in Victoria, Australia: A values-based critique' in Sue Westwood (ed), Regulating the End of Life: Death Rights (Routledge, 2021) 55-73.
Lindy Willmott, Ben White, Marcus Sellars and Patsy Yates, 'Participating doctors’ perspectives on the regulation of voluntary assisted dying in Victoria: a qualitative study' (2021) Medical Journal of Australia.
Rosalind McDougall, Ben White, Danielle Ko et al, 'Junior doctors and conscientious objection to voluntary assisted dying: ethical complexity in practice' (2021) Journal of Medical Ethics.
Jodhi Rutherford, Lindy Willmott and Ben White, ‘What the Doctor Would Prescribe: Physician Experiences of Providing Voluntary Assisted Dying in Australia’ (2021) Omega: Journal of Death and Dying.
Lindy Willmott, Ben White, Rachel Feeney et al, ‘Intentional hastening of death through medication: A case series analysis of Victorian deaths prior to the Voluntary Assisted Dying Act 2017’ (2021) 51(10) Internal Medicine Journal 1650-1656.
Ben White, Lindy Willmott, Eliana Close et al, 'Legislative Options to Address Institutional Objections to Voluntary Assisted Dying in Australia' (2021) 3 University of New South Wales Law Journal Forum 1-19.
Jayne Hewitt, Ben White, Ben, Katrine Del Villar et al, 'Voluntary assisted dying in Victoria: Why knowing the law matters to nurses' (2021) 28(2) Nursing Ethics 221-229.
Ben White, Lindy Willmott, Marcus Sellars, Patsy Yates. 'Prospective oversight and approval of assisted dying cases in Victoria, Australia: a qualitative study of doctors’ perspectives' (2021) BMJ Supportive and Palliative Care.
Ben White, Lindy Willmott, Eliana Close et al. 'Development of voluntary assisted dying training in Victoria, Australia: A model for consideration'. (2021) 36(3) Journal of Palliative Care 162-167.
Jodhi Rutherford, Lindy Willmott and Ben White. 'Physician attitudes to voluntary assisted dying: a scoping review'. (2021) 11(2) BMJ Supportive and Palliative Care 200-208.
Alex Holmes, Peter Lange, Cameron Stewart et al, ‘Can depressed patients make a decision to request voluntary assisted dying?’ (2021) 51(10) Internal Medicine Journal 1713-1716.
Katrine Del Villar, Eliana Close, Rachel Hews, et al. 'Voluntary assisted dying and the legality of using a telephone or internet service: The impact of Commonwealth ‘Carriage Service’ offences'. (2020) Monash University Law Review. (In Press)
Jodhi Rutherford, 'Conscientious participants and the ethical dimensions of physician support for legalised voluntary assisted dying' (2020) Journal of Medical Ethics.
Jodhi Rutherford, 'Doctors and the Voluntary Assisted Dying Act 2017 (Vic): Knowledge and General Perspectives' (2020) 27(4) Journal of Law and Medicine 952-966.
Ben White et al, 'Assisted dying and evidence-based law-making: A critical analysis of an article’s role in New Zealand’s referendum' (2020) 133(1520) New Zealand Medical Journal 83-90.
Ben White, Katrine Del Villar, Eliana Close and Lindy Willmott, ‘Does the Voluntary Assisted Dying Act 2017 (Vic) Reflect Its Stated Policy Goals?’ (2020) 43(2) University of New South Wales Law Journal.
Andrew McGee, 'Voluntary assisted dying: should conscientious objection be unconditional?' (2020) 50 Journal of Pharmacy Research and Practice 117-121.
Katrine Del Villar, Lindy Willmott and Ben White, ‘Suicides, Assisted Suicides and 'Mercy Killings': Would Voluntary Assisted Dying Prevent these 'Bad Deaths'?’ (2020) 46(2) Monash University Law Review.
Lindy Willmott et al, 'Restricting conversations about voluntary assisted dying: Implications for clinical practice' (2020) 10(1) BMJ Supportive and Palliative Care 105.
Ben White and Lindy Willmott, ‘A Model Voluntary Assisted Dying Bill’ (2019) 7(2) Griffith Journal of Law and Human Dignity 1.
Ben White and Lindy Willmott, ‘Evidence-based law-making on voluntary assisted dying’ (2019) Australian Health Review 1.
Bregie Onwuteaka-Philipsen, Lindy Willmott and Ben White, 'Regulating voluntary assisted dying in Australia: Some insights from the Netherlands' (2019) 211(10) Medical Journal of Australia 438.
Ben White, Lindy Willmott and Eliana Close, ‘Victoria’s voluntary assisted dying law: Clinical implementation as the next challenge’ (2019) 210(5) Medical Journal of Australia 207.
Ben White and Lindy Willmott, Voluntary Assisted Dying Bill 2019 (Unpublished, 2019).
Carmelle Peisah, Linda Sheahan and Ben White, ‘The biggest decision of them all - death and assisted dying: capacity assessments and undue influence screening’ (2019) 49(6) Internal Medicine Journal 792.
Andrew McGee et al, ‘Informing the euthanasia debate: Perceptions of Australian politicians' (2018) 41(4) University of New South Wales Law Journal 1368.
Ben White and Lindy Willmott, 'Future of assisted dying reform in Australia' (2018) Australian Health Review 616.
Cameron Stewart, ‘Euthanasia, Suicide and Assisted Dying’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (Law Book Co, 3rd ed, 2018) 526.
Lindy Willmott and Ben White, ‘Assisted dying in Australia: A values-based model for reform’ in Ian Freckleton and Kerry Petersen (eds), Tensions and Traumas in Health Law (Federation Press, 2017) 479.
Andrew McGee and Franklin Miller, 'Advice and care for patients who die by voluntarily stopping eating and drinking is not assisted suicide' (2017) 15(222) BMC Medicine 1.
Lindy Willmott et al, ‘(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics’ (2016) 39(1) University of New South Wales Law Journal 1.
Neera Bhatia, Ben White and Luc Daliens, ‘How should Australia respond to media-publicised developments on euthanasia in Belgium?’ (2016) 23(4) Journal of Law and Medicine 835.
Ben White, Lindy Willmott and Julian Savulescu, ‘Voluntary palliated starvation: A lawful and ethical way to die?’ (2014) 22(2) Journal of Law and Medicine 376.
Bob Douglas, Lindy Willmott and Ben White, The right to choose an assisted death: Time for legislation? (Report, January 2013).
Ben White and Lindy Willmott, 'How should Australia regulate voluntary euthanasia and assisted suicide?' (2012) 20(2) Journal of Law and Medicine 410.
Jocelyn Downie and Ben White, ‘Prosecutorial discretion in assisted dying in Canada: A proposal for charging guidelines’ (2012) 6(2) McGill Journal of Law and Health 113.
Ben White and Jocelyn Downie, ‘Prosecutorial guidelines for voluntary euthanasia and assisted suicide: Autonomy, public confidence and high quality decision-making’ (2012) 36(2) Melbourne University Law Review 656.