Week 7 (Tutorial 6) - Week 6 tute PDF

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WEEK 7 TUTORIAL

This tutorial consists of: •

Homicide and coronial case study

PRE-TUTORIAL PREPARATION You MUST read the following coroner’s report: Inquest into the death of Leanne Margaret Sleba TITLE OF COURT: Coroner’s Court JURISDICTION: Toowoomba DELIVERED ON: Friday 24th June 2011 DELIVERED AT: Brisbane HEARING DATES: 23, 24, 25 May 2011 PLACE OF HEARING: Toowoomba FINDINGS OF: Coroner Tina Previtera

This tutorial provides you with valuable experience in the skills you will need to practice applying and interpreting the law in relation to homicide offences in Queensland.

HOMICIDE AND CORONIAL CASE STUDY In your collaborative groups: TASK 1 Discuss and report on what would be needed in order for the Crown to have succeeded in any prosecution for manslaughter which may have arisen as a result of the Sleba coronial inquest. In particular, you will need to address the requirements of the following provisions (in addition to any common law tests): *Use Carters Criminal code and the lecture notes to properly understand the various sections to ensure you meet all the steps required to understand the offences and the parts, meeting the elements, apply it with the authority and reach a conclusion. Utilise a legal problem solving methodology – go through it logically and methodically*

Summarise Notes/Application section s 291: Killing of a It is unlawful to kill any person unless such killing is human being authorised or justified or excused by law. unlawful s 293: Definition Element: Unlawful, Kills of killing Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. (Elements, causation & direct/indirect) Causation – factual (but-for test) and legal causation (Royal, operational/substantial causation tests) Direct/Indirect – positive act/ negligence (criminal negligence provisions) s 300: Unlawful Any person who unlawfully kills another is guilty of a crime, which homicide is called murder or manslaughter, according to the circumstances of the case. s 303: Definition (1) A person who unlawfully kills another under such of manslaughter circumstances as not to constitute murder is guilty of manslaughter. (2) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.`

s 289: Duty of persons in charge of dangerous things

It is the duty of every person who has in the person’s charge or under the person’s control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

Criminal negligence and responsibility is set at a very high standard. Para 78/79 in the coroners conclusion: Jerad J referred to the high standard of negligence necessary to constitute criminal negligence and considered it would have been appropriate to repeat to the jury to repeat to the jury of criminal negligence in R v Bateman as negligence showing “such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. The evidence in (the coroners view), falls short in establishing such a breach to duty of care if I can be satisfied if the events occurred as per the events as suggested by Geoffrey Sleba. Summarising, the evidence falls short of establishing such a breach of duty of care. In order for the Crown to successful in prosecuting the accused of manslaughter, the above reasons give cause as to why it would be difficult to reach a manslaughter verdict. TASK 2 Discuss and report on what would be needed in order for the Crown to have succeeded in any prosecution for murder. In particular, you will need to address the requirements of the following provisions (in addition to any common law tests): Summarise section Sections above + s 302(1)(a) Definition of Murder [Direct killing]

Notes/Application

(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say— (a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm; s 302(1)(aa) (aa) if death is caused by an act done, or omission made, with [reckless indifference reckless indifference to human life; to human life] s 302(1)(b) [Dangerous acts]

(b) if 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;

At s301(1)(a) – There must be intention and motive to kill or commit GBH. Elements include: 1) unlawful, 2) killing & 3) intention to cause death/GBH. At s301(1)(aa) – There must be a reckless indifference to human life (foresight of the probability of death). [New section. See NSW cases such as Crabe, Royal, Campbell, see textbook 4.285/lecture slides]. At s302(1)(b) – There must be evidence that establishes that something has been done which is a dangerous act. Elements include: 1) unlawful, 2) killing, dangerous act, 3) unlawful purpose and 4) act done in prosecution of an unlawful purpose Applying the facts to the above elements In terms of s301(1)(a) No intention/motive exists. Thorough police investigation conduct and it was very weak in relation to a motive/intent. A little suggestion about a financial hardship, possible affair or violence, but very, very weak and a stretch. In terms of s301(1)(b) There wasn’t much evidence that was critical of what Geoffery Sleva was doing in using a gun to potentially kill a snake. In terms of the crown prosecuting murder, it would be highly unlikely to meet the above elements. Looking at the coroner’s conclusion: Para 76: In light of the exhaustive police investigation, confirmed by the examination of Sergeant David Briese, in which information gathered in connection with the personal and financial relationships between Geoff and Leanne showed no evidence as to a motive for murder, and Geoff Sleba provided substantial consistent versions of events. I make no referral to the Director of Public Prosecutions (DPP) in relation to such a charge.

TASK 3 Discuss and report on the evidentiary issues which resulted in an opening finding in relation to the cause of death in this inquest. Why was Geoffrey Sleba not required to give evidence at the inquest? Would this have made the task of the coroner more difficult? If there had been a referral of the death to the Office of the Director of Public Prosecutions, would have been competent and compellable to give evidence at any subsequent trial? [Hint: See the provisions of the Evidence Act 1977 (Qld ]

Firstly, it is important to understand what a coronial inquest job is. The coronial inquest is not a criminal trial, as per paragraph 5, the corner states the authorities clearly establish that the scope of an inquest goes beyond merely establishing the medical cause of death. In paragraph 6 – an inquest is not a trial between opposing parties but an inquiry into the death. In a leading English case it was described in this way: “It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends…The function of an inquest is to seek out and record as many of the facts concerning the death as the public interest requires. Paragraph 7 – The focus is on discovering what happened, not on ascribing guilt, attributing blame or apportioning liability. (compared to a criminal trial which is adversarial, one party against another).

Key evidentiary issue(s): See above. Why was Geoffrey Sleba not required to give evidence at the inquest? It is not a criminal proceeding, so he did not have to. There was medial issues that would have been exacerbated if he were forced to give evidence. Would this have made the task of the coroner more difficult? Yes it would, although you have the statement from Geoffrey, and other leading experts relevant, it would have been useful if it was possible to asks questions to Geoffrey and clarify the evidence. Would he be compelled to testify if on trial for a homicide offence? As per s8 of the evidence act, he would have been competent but not compellable. Meaning he could give testimony but he is not compelled to do so. s 8 “in a criminal proceeding, each person is competent to give evidence on behalf of the defence, but is not compellable to do so” (compellable - to be made to attend court of give evidence) Listen to the lecture, read the text book, look at carters criminal code and study the sections so you know the steps that is needed to take for unlawful homicide. As well as the elements. Create the process before doing the assignment....