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2019 sem 1 Assignment ...

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UTS:Law Assignment Cover Sheet for Online Submissions

Instructions for students: 

Please complete and include this cover sheet when submitting online assignment .

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The cover sheet should become page 1 of your assignment – do NOT submit this coversheet as a separate document to your assignment.

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ACADEMIC HONESTY DECLARATION

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I confirm that I am aware of the University rules regarding plagiarism and academic misconduct.

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I confirm that this assignment is entirely my own work and I have not previously submitted any part of it for assessment at UTS or any other institution.

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STUDENT DETAILS (to be completed by student) Student Number:

13233972

Family Name:

Paran

Given Name(s):

Zahra Sadat

Subject Number:

70114

Subject Name:

Criminal Law and Procedure

Subject Coordinator:

Ian Dobinson

Word Count:

2621

Date of Submission:

S2016_Sept_v3

Introduction

This paper will dissect the criminal liability of Joe to the homicide of Sam. Joe will be charged with murder under s 18(1) of the Crimes Act 1900 (NSW) (‘the Act’). The prosecution must prove the actus reus, mens rea and temporal coincidence beyond reasonable doubt (BRD).1 Joe will raise the partial defence of extreme provocation and substantial impairment of the mind (SIM) under s 23(2) and s 23A of the Act respectively. Joe bears the evidentiary burden for provocation and SIM, which the prosecution must disprove BRD thereafter.

Homicide The actus reus of homicide requires a voluntary act or omission that causes the victim to die. Legal capacity may be presumed by the prosecution, given Joe is over ten years of age as alluded to by the facts, and the exclusion of insanity from the assignment scope. The prosecution may presume voluntariness unless facts of the case suggest the act not to be ‘conscious’ or ‘willed’. 2 In this case, there is no suggestion that Joe’s verbal and physical assault of Sam were involuntary. The ‘specified act’ encompasses Joe jumping out of the car, verbally stating “I’ll kill you, you bastard”, crash tackling Sam, hitting Sam around the back of the head, getting up and kicking Sam in the back. As such the prosecution will prove voluntariness BRD with ease. Did Joe cause the death of Sam? Per ‘the Act’, Joe must have induced the rupturing of Sam’s spleen as a substantial and operating act, and without a break in causation. 3 Joe may argue that Sam had ruptured his spleen prior to Joe’s attack. Given the medical history of Sam, it is possible the rupturing occurred while Sam broke and entered into Joe’s home. Furthermore, Sam’s injury may have been the reason Joe was able to reach and crash tackle Sam with relative ease. Joe did not attack Sam’s abdomen area in any way, focusing his attack on Sam’s back and head. As such, Joe may argue his attack merely placed Sam in a hospital where they discovered his previously ruptured spleen. Using the ‘But for’ test, 4 this is indicative that Joe would not be liable for Sam’s death. If we are to assume Sam was relatively healthy and injury-free before the ‘specific act’, the prosecution will argue Joe ruptured Sam’s spleen upon jumping on his back or through kicks directed at Sam’s back. The phrase ‘one last kick’ suggests there to have been numerous kicks. Further, where there may be more one than cause of death, the court will 1 Woolmington v DPP [1935] AC 462. 2 Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30. 3 The Crimes Act 1900 (NSW) s 18; Royall v R (1991) 172 CLR 378. 4 Ryan v R (1967) 121 CLR 205.

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hold it to be irrelevant so long as the defendant’s actions substantially contributed to the death of the victim.5 As such, the prosecution must prove BRD that Joe’s attack is the substantial and operating cause of the death of Sam.6 Did medical negligence break the chain of causation? Joe will raise that the chain of causation was broken by medical negligence, with Sam’s death being a result of poor medical care. Sam had been ‘quite stable’ upon hospital arrival, with respiratory problems and consequent death being triggered by the hospital’s injection of drugs. However, authority is apparent that medical negligence need not break the chain of causation so long as the ruptured spleen was an operating and substantial cause of death. 7 In a similar case, R v Cheshire,8 the victim died from respiratory problems which arose post medical treatment. The court held that medical treatment would not break the chain unless the treatment is so independent of the accused’s act to regard the contribution as negligible. Given, Joe’s dangerous attack, the ‘relevant act’ will be held to be the substantial and operating cause of Sam’s death. As such, the prosecution will surely prove the actus reus element of murder. Did Joe verbally portray his intention? The prosecution must prove BRD the defendant caused death with either an intention to kill, inflict grievous bodily harm (GBH) or with reckless indifference to human life. 9 The prosecution will raise that Joe intended to murder Sam, citing evidence of Joe verbally proclaiming intention in “I’ll kill you”. The question arises as to whether Joe shouted this to inject fear or is this a clear portrayal of Joe’s intention. The facts outline Sam had already begun leaving the house and running away, suggesting Joe did not shout this in an attempt to scare and entice Sam to leave. Sam was already leaving and running away emptyhanded. Joe’s words are not a conditional threat nor suggest an alternative motive in Joe’s actions. As such, it can be reasonably assumed Joe’s yelling, chasing and physically assaulting Sam were genuine portrayals of Joe’s stated intention of killing Sam. Furthermore, the prosecution will raise that it does not matter if death does not occur in the exact manner Joe intended, so long as Joe simultaneously held mens rea to kill, inflict GBH or recklessly inflicted GBH while completing the act. 10 This is clear through Joe’s words, repeated punches and kicks, and continuance of his actions despite the neighbour’s warning. The defence may raise that, per R v Wilson, homicide should not be imposed where the death is unexpected. 11 If Joe had had real intention to murder Sam, he could do so and as 5 R v Moffatt (2000) 112 A Crim R 201. 6 Royall v R (1991) 172 CLR 378. 7 R v Smith [1959] 2 QB 35. 8 R v Cheshire [1991] 1 WLR 844. 9 Crimes Act 1900 (NSW) s 18. 10 Royall v R (1991) 172 CLR 378. 11 R v Wilson [1955] 1 WLR 493.

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such would have. Rather, when warned of the inevitable consequences of his actions, Joe stopped and got up despite having full control over an unconscious Sam at the time. As such, he may raise that there was a lack of direct intention to murder Sam, only verbally assaulting Sam in a fit of rage. Did Joe foresee his actions causing GBH? If the prosecution were to not succeed in proving Joe had sufficient mens rea for murder, they would attempt to argue that Joe intended to inflict GBH upon Sam. Per the Crimes Act s 4(2),12 Grievous bodily harm is defined as “any permanent or serious disfiguring of the person” or as “really serious bodily harm’.13 The defendant’s attack on the back of the victim's head and back is indicative of this, two susceptible areas of the human body, indicating the attack not to be an uncontrolled but targeted rage. This question of fact is for the jury, and one the prosecution will likely prove BRD. If the prosecution was unable to prove Joe intended to kill or inflict GBH upon Sam, they might argue Joe was reckless of his actions. In New South Wales, reckless indifference to human life requires recognition of the probability of death. 14 Joe would have subjectively recognised attacking Sam was dangerous but intended to act in that manner regardless. The prosecution may struggle to portray Joe foresaw the probability of death, as opposed to the possibility of death or serious harm, which would render insufficient mens rea for murder. This is reflective in Joe standing up off Sam once warned that continuing may lead to the death of Sam, a risk he may not have initially subjectively recognised. Sam should be wary that this will be unlikely to hold in court given his vocal expression and last kick despite his neighbour’s warning. Furthermore, Sam would have known attacking a human head or back is quite risky and prone to very severe injury or death, especially given recent laws and news surrounding ‘coward punches’.15 If the manner of battery has a appreciable risk of serious injury, then naturally a reasonable individual would perceive a risk of death.16 Joe may raise there was no foreseeable way of knowing of Sam’ sensitive spleen, and that an ordinary individual would not have been at risk. In a case with similar effect, Mamote- Kulang v R, the defendant ruptured his wife’s spleen via a direct blow to her abdomen, which resulted in her death. Like Sam, the deceased in this case held a sensitive spleen of which the striking party was unaware. Taylor and Owen JJ held this would not constitute an accident nor excuse the defendant, per the eggshell skull principle, 17 given the intentional strike which led to the death. 18

Was there contemporaneity? 12 Crimes Act 1900 (NSW) s 4(2). 13 R v Perks (1986) 41 SASR 335. 14 Royall v R (1991) 172 CLR 378; Crimes Act 1900 (NSW) s 18. 15 Crimes Act 1900 (NSW) s 25A. 16 R v Perks (1986) 41 SASR 335. 17 Blaue v R (1975) 3 ALL ER 446.

18 Mamote-Kulang v R (1964) 111 CLR 62 per Taylor and Owen JJ. 4

If the prosecution succeeds in proving the actus reus and mens rea elements, they will have no difficulty in proving they existed simultaneously. The defence carries the evidentiary burden to prove a lack of temporal coincidence. Whether it applies will depend on what the court constitutes as the relevant act and the specific cause of death. As highlighted above, the ‘relevant act’ will most likely include the whole scenario of interaction. In Murray (2012) the court found the ‘relevant act’ to include the loading and pointing of the gun. 19 As such, it is unlikely the court will narrow the act to the specific act which most likely ruptured Sam’s spleen. Joe may raise that he lacked mens rea at all points during the relevant act and as such temporal coincidence was lacking and unable to hold him liable. However, the transaction theory holds mens rea need only be present at some point during the relevant act. 20 When Joe had the mens rea to verbally and physically assault Sam, the actus reus of voluntary manslaughter was incomplete. Instead, the ‘relevant act’ could be outlined as the initial stage of the actus reus, in which Joe had mens rea to murder, whereby the actus reus was completed in the latter stage of respiratory failure and switching off the ventilator. Despite these being present at differing times, it does not discount the mens rea at the initial stage, satisfying the requirement for contemporaneity. The prosecution will be able to prove temporal coincidence BRD.21 In the case the prosecution is unable to prove murder, they will attempt to indict the defendant of voluntary manslaughter.

Involuntary manslaughter

If the prosecution can prove Joe killed Sam but unable to prove the requisite mens rea, Joe may be charged with involuntary manslaughter.22 The prosecution will seek to charge Joe with involuntary manslaughter by unlawful and dangerous (UDA). Under strict definition, Joe may also be charged with involuntary manslaughter due to negligence, but given the attack of Sam was unlawful and Joe’s stated intention to kill, the former is more applicable. To be liable for UDA manslaughter the ‘relevant act’ must 1) Cause death 2) be unlawful 3) create ‘an appreciable risk of serious injury’. 23

19 Murray v R [2002] 211 CLR 193. 20 Thabo Meli v R [1954] 1 All ER 373. 21 Thabo Meli v R [1954] 1 All ER 273. 22 Crimes Act 1900 (NSW) s 18. 23 Wilson v R (1992) 174 CLR 313 per Mason CJ, Toohey, Gaudron and McHugh JJ.

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Per the discussion above, the first two requirements are satisfied. The third is an objective test, using the ‘reasonable person’ in the position of Joe conducting the same act. The prosecution will raise that while Joe may not have realised his act is dangerous, a ’reasonable person would realise that it was exposing others to an appreciable risk of serious injury’. 24 This is evident by the nature of Joe’s attack, the body areas targeted, and commentary of the neighbour who viewed the attack as at risk of murder and serious injury. The prosecution will prove Joe guilty of involuntary manslaughter BRD.

Joe bears the evidentiary burden of raising extreme provocation to reasonable possibility, as such that Sam’s breaking and entering of Joe’s home caused him to lose control. If Joe satisfies this evidentiary burden, the legal burden will shift to the prosecution to disprove beyond reasonable doubt.25

Partial Defences

Joe bears the evidentiary burden to raise provocation to a reasonable possibility. The prosecution will then be required to disprove this BRD. To satisfy provocation, Joe must prove: 1) His actions were in response to the conduct of Sam towards or affecting Joe. 2) Sam’s conduct was a serious indictable offence. 3) Sam’s conduct caused Joe to lose self- control. 4) Sam’s conduct would have caused an ordinary person to lose control to the extent of creating an intention to murder or cause GBH. 26 In this scenario, Sam’s breaking into Joe’s dwelling with intent to steal is a serious indictable offence. 27 The ’relevant act’ was a consequence of Sam’s actions, leading Joe to lose self- control and proclaim intention to murder Sam. Sam’s conduct directly affected and triggered Joe, especially given Joe’s relative violent history and poor mental health, leading him to believe Sam had not only broken into his home but also taken away his family. For the fourth requirement, the jury will need to contextualise the situation and place themselves in Joe’s place including his age, race, personal attributes, personal relationships, and other relevant history indicative of the gravity of Sam’s actions on Joe. As such, the jury will likely find the ordinary man, note not reasonable man, 28 will find Sam’s actions substantiated extreme provocation. 24 R v Holzer [1968] VR 481. 25 Woolmington v DPP (1935) AC 462. 26 Crimes Act 1900 (NSW) s 23(2). 27 Crimes Act 1900 (NSW) s 148. . 28 Johnson v R (1976) 136 CLR 619.

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The defence may also raise the defence of SIM which has three requirements: 1) Joes must have been suffering from an ‘abnormality of mind arising from an underlying condition 2) Joe must have substantial impairment of his capacity to control himself 3)The impairment must have been so substantial so as to warrant the reduction of murder to manslaughter. Similar to Chayna (1993), 29 Joe has symptoms of severe depression and emotional distress which had been existing and aggravating over time. His ‘frequent mood swings’ which would oft result in violence towards his loved ones are indicative of this. Further, the symptoms have significantly worsened since his family’s departure, indicated by Joe’s daily ritual of visiting an empty home in hopes of seeing his family. Though the time period is unstated, facts suggest this to be a sustained length. Particularly noteworthy is the cyclical nature of Joe’s thoughts and actions since his family’s departure, in which seeing a stranger leaving his home was linked to the absence of his family instead of his property. Despite violence being the root cause of Joe’s separation, he has dissociative mannerisms whereby he blames a stranger to his family’s absence. In Cavanough (2017), 30 Judge Whealy held that while the defendant was likely to be affected by depression and post-traumatic stress disorder, it must be present in the moment of the ‘relevant act’ to substantiate SIM. Alternatively, in Joe’s case, it is very vividly present and affect Joe in the moment of attack. Further evidence will be required at trial, but the defence will probably satisfy the requirements for SIM.

Conclusion

The prosecution would have no difficulty establishing the actus reus for murder. However, they may have some difficulty in establishing sufficient mens rea for murder. Joe’s actions and mental state at the time suggest the jury will find Joe guilty of murder, punishable by 25 years imprisonment. The jury will likely find Joe was under extreme provocation, if not substantial impairment of the mind. As such, the judge will reduce Joe’s crime to voluntary manslaughter.

29 R v Chayna (1993) 66 A Crim R 178. 30 R v Cavanough [2007] NSWSC 561.

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