Homicide: lawful and unlawful killing
by Robert Wilson
This is an extract from Lawbook Company's Nutshell: Criminal Law by Robert Wilson (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.
Homicide is the killing of one human being by another. It may be lawful or unlawful, the latter being divided into various categories such as murder, manslaughter, infanticide and causing death by culpable driving. The historical dissertation on homicide in Wilson
(1992) CLR is both interesting and instructive. Initially, any act causing death was culpable.
However, as this dissertation shows, two trends emerged. The first was to limit the scope of culpable homicide (by defences and the like). The second was to recognise different degrees of culpability by distinguishing between murder and manslaughter. This second trend produced complexity.
Pragmatically, one distinguishes between lawful and unlawful homicide by determining whether the accused has committed any of the crimes discussed in this chapter or the next. If such a crime has been committed, and there is no defence such as self-defence, then the homicide is unlawful. The classic example of lawful homicide is execution pursuant to a sentence of death.
At common law an organism is a human being when it is delivered from the body of its mother and has an independent existence. Some States exclude the latter requirement and in N.S.W. a baby is alive when it commences to breathe. The importance of this is to distinguish murder from infanticide - note the possibility of alternative verdicts. A person ceases to be a human being upon death - this raises questions of intention and causation).
The first concern of the law of homicide is the topic of murder. One may commit murder:
(a) under the basic principle;
(b) under the felony-murder rule; or
(c) whilst resisting lawful arrest.
This article should be read in conjunction with The general principle of criminal law
and Exceptions to the general rule