Murder/manslaughter where the defendant is charged as a principal or as a party in the alternative (Sections 66, 167 and 171 of the Crimes Act 1961)

[Note: The following scenario rests on the factual assumption that the Crown alleges Mr Jones died as a result of being hit on the head with a hammer. The Crown argues that both Mr Smith and Mr Thomas were present when Mr Jones was killed. It alleges that Mr Smith struck Mr Jones on the head with the hammer or, alternatively, Mr Thomas struck Mr Jones on the head with the hammer while Mr Smith physically assisted or encouraged him to do so. Mr Smith and Mr Thomas are being tried together. This question trail addresses only the position of Mr Smith. A separate equivalent question trail will be necessary for Mr Thomas.]

Charge 1: Murder or manslaughter under ss 66, 167 and 171 of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means that you must be sure that each element is proved.

1.	Are you sure that either Mr Smith or Mr Thomas hit Mr Jones on the head with a hammer on 14 January 2019?
	If no, find Mr Smith not guilty of both murder and manslaughter. If yes, go to question two.
2.	Are you sure that being hit on the head with the hammer was a substantial and operative cause of Mr Jones’ death?
	A substantial and operative cause does not have to be the main or the only cause of death. But, it must have played a part which was not insubstantial or insignificant. If no, find Mr Smith not guilty of both murder and manslaughter. If yes, go to question three.
3.	Are you sure that Mr Smith took part in the killing of Mr Jones with a hammer in one or more of the following ways: (a) By intentionally hitting Mr Jones on the head with the hammer? (b) By intentionally physically assisting Mr Thomas to hit Mr Jones on the head with the hammer? (c) By intentionally encouraging Mr Thomas to hit Mr Jones on the head with the hammer, by saying “give it to him” or words to that effect?
	If your answers to ALL of (a), (b) and (c) are no, find Mr Smith not guilty of both murder and manslaughter. If each one of you answers yes to one or more of (a), (b) and (c), go to question four.
4.	Are you sure that when Mr Smith took part in the killing of Mr Jones with a hammer, he either: (a) meant to cause Mr Jones’ death or knew his actions were likely to cause death but was prepared to run the risk that Mr Jones could die as a result of his actions; or (b) when assisting or encouraging Mr Thomas to hit Mr Jones on the head with the hammer, Mr Smith did so knowing that: i. Mr Thomas was going to cause bodily injury to Mr Jones which was likely to cause his death and that Mr Thomas meant to cause Mr Jones’ death; or ii. Mr Thomas was going to cause bodily injury to Mr Jones which was likely to cause his death and that Mr Thomas knew his actions were likely to cause death but was prepared to run the risk that Mr Jones could die as a result of his actions.
	If your answers to ALL of (a), (b)(i) and (b)(ii) are no, find Mr Smith not guilty of murder, but guilty of manslaughter. If each one of you answers yes to one or more of (a), (b)(i) and (b)(ii), find Mr Smith guilty of murder.