Elemets of Constructive Murder Hand Me Notes元素的建设性谋杀我的笔记.docxVIP

Background Under the Criminal Code (WA) (“the Code”)  Criminal Code Act Compilation Act 1913 (WA) (‘Criminal Code’). , a person who unlawfully kills another can be guilty of murder even if they had no intention of causing death as in ibid s 279(1)(a). or life-endangering injuries as in ibid s 279(1)(b). to another person. Section 279(1)(c) of the Code refers specifically to constructive murder. It states: If a person unlawfully kills another person and … the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, … the person is guilty of murder Ibid ss 279(1), 279(1)(c). . Such a person, having been found guilty of murder, “must be sentenced to life imprisonment”, or in exceptional circumstances be liable for a 20 years sentence Ibid s 279 (4). . Constructive murder stands unique amongst other forms of murder in that “it is immaterial that the person did not intend to hurt any person” Ibid s 279 (3). . Thus, the prosecution need not prove mens rea to satisfy a guilty verdict of murder. It is this missing element that has been the subject of much criticism. Historical Context Since the origins of common law in England, all unlawful homicides were punishable by death, unless commuted to life imprisonment through ‘the benefit of clergy’. In the fifteenth century, this mercy was restricted to cases of ‘killing without malice aforethought’, and so manslaughter was distinguished from murder on the basis of subjective intent. Sir Owen Dixon, ‘The Development of the Law of Homicide’ (1935) 9 Australian Law Journal Supplement 64, 67; Rollin M. Perkins, “A Re-Examination of Malice Aforethought” (1934) 43 Yale Law Journal 537. In Western Australia, up until 2008, there were three tiers of homicide: wilful murder, murder and manslaughter, each distinguished on the basis of the intention of the accused. WA Law Reform Commission, Review of the Law of Homicide, Report