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victim dead?
Yes = No =
Homicide Assault
Act or
Yes = Guilty of omission was
manslaughter LAST: Is self-
negligent = defence available
s24 to anything?
*Remember keep all actus reus
and mens rea bits together. 1 the type of the injury (serious or not) is a question for the jury.
[Type text] [Type text] [Type
Questions of fact text]
for jury.
(1) Theories, procedure and proving criminal
responsibility
Definition of a crime
A crime (or offence) is a legal wrong that can be followed by criminal proceedings
which may result in punishment (Professor Glanville Williams).
Crimes are such acts or omissions as are prohibited under appropriate penal
provisions by authority of the State. Conduct is criminal because it is a crime (per
Lord Atkins in Proprietary Articles Trade Association).
Patrick Devlin sees crimes as acts morally unacceptable by the reasonable person
(Devlins reasonable person is not a construct of reason, but of commonly accepted
views at that time).
Society is held together by moral bonds. Weakening moral positions weakens these
bonds and will lead to societys destruction. Therefore the criminal law must preserve
morality.
It does not need to be a public breach; an immoral act committed in absolute privacy
is as immoral as an act committed publicly.
Crimes cause physical harm to others (other-regarding actions). They cannot prevent
the individual harming himself (self-regarding actions). Harm is physical and not
emotional (any act that only causes emotional harm is self-regarding).
Such liberalism is fundamental because it protects the individual from what Mill calls
the tyranny of the majority. Under Mills tyranny, the prevailing opinions of the
majority define the rules of conduct within society. The majority is not necessarily
correct. The only safeguard against this is to ensure that every act is legal, except
those actions that society as a whole wants to prevent (Mills harm principle; the
actions that are contrary to self-preservation harm).
H L A Hart bridges the theories of Devlin and Mill; crimes are activities that cause
harm, physical or emotional, to others or the self. Every other act should be legal.
Laws are paternalistic and not moralistic.
1. Retribution
Crimes are wrongs and justify punishment even if it serves no useful purpose.
A controlled means for revenge; stops people from seeking individual
retribution.
2. Deterrence
If the pain inflicted through punishment is greater than the pleasure derived
from performing the prohibited act the potential criminal should be deterred.
Conflicts with basic notions of justice; a starving person desperately needs
food and so would require a more severe form of punishment to deter them
from stealing some than it would take to deter a wealthy person, who doesnt
need the food, from doing the same act.
3. Rehabilitation
Crime is a social disease. Reforming the criminal to lead a non-criminal life
4. Denunciation
Public condemnation of behaviour to show people what is right and what is
wrong.
5. Education
As to which acts are tolerated and which are not.
6. Community protection
Prevents criminals from re-offending for a period of time.
Procedure
Sources of law
Victoria is a common law state so its sources of law include both the common law and
legislation (the primary legislation is the Crimes Act 1958 (Vic)).
Federal statutes (override) > state statutes > common law (all common law offences
continue to exist unless expressly abrogated by statute).
Classification of offences
Jurisdiction (persons)
1014 years old: Prosecution must prove that D knew his conduct was wrong
(children in this age range are doli in capax a presumption that they lack the
necessary level of mental culpability).
Mental impairment: There is a presumption of sanity. Where, at the time of doing the
criminal act, D was suffering from mental impairment such that he did not know the
nature or quality of the conduct (1) or that the conduct was wrong (2) he must be
found not guilty because of mental impairment. D will be released or detained under a
supervision order.
Territorial jurisdiction
Person who commit a criminal act or omission within the territorial limits of a
jurisdiction, or whose conduct causes substantial harmful effects there, are
subject to the law and courts of that jurisdiction.
Judges are the judges of law. Juries are the judges of fact. Once the jury have found
the facts they apply to them the principles of law expounded to them by the judge to
decide their verdict.
Proofs
Burdens
- Evidential burden: To bring sufficient evidence for the issue to go before the
jury. The prosecution always bears this duty.
- Legal burden: Whether the issue has been proved to the requisite standard.
Affirmative defences
General defences (self-
Elements of the crime (mental impairment and
defence, infanticide etc.)
other statutory exceptions)
Legal Evidential Legal Evidential Legal Evidential
burden burden burden burden burden burden
Party
bearing
P P P D D D
the
burden
Standard Beyond Beyond Balance of
Balance of Balance of Balance of
of reasonable reasonabl probabilitie
probabilities probabilities probabilities
burden doubt e doubt s
Checklist:
Voluntariness
Ds act or conduct was voluntary; a willed act, not forced or controlled, (1) produced
by a conscious mind (2). Prosecution must establish Ds precise voluntary act (3).
- Automatism; an act done by the muscles without any control by the mind
(concussion or sleep); Jiminez:
D fell asleep while driving and collided with a tree, killing V. D was not under
the influence of drugs or alcohol, had slept several hours before driving and
Causation
For a result crime, prosecution must prove Ds act caused the result (establish a
causal link). For a conduct crime, prosecution must prove Ds conduct was
voluntary.
But for
Discredited but can be used as a prima facie test to check for any causal link: But for
the act of the accused would the victim have died. If the answer is no, test is made
out and use SaOC.
The Supreme Court held that if at the time of death the original wound was still an
operating cause and a substantial cause the death could be said to be the result of this,
even if some other cause was still operating.
Natural consequence
It will not break the chain if the death was a natural consequence of the act of the
accused. That is, if the death was foreseeable as likely to occur or a consequence
which might be expected to occur in the normal course of events (Hallett). In this
case V drowning was a natural consequence.
Police officers
The act of a third party (not acting in concert with D) may break the chain of
causation only where the intervention was free, deliberate and informed (Pagett).
In Pagett, D was involved in a shoot-out with police and used V, his girlfriend, as a
shield. V was shot dead by police.
Medical treatment
V died after falling from the bathroom window of her sixth floor flat. The Crown
alleged D had brought about the death in one of three ways; D pushed V; D attacked
V, causing her to fall; or, V jumped to escape further violence. The High Court
considered the third alternative.
As per Mason CJ, Where the conduct of the accused induces in the victim a well-
founded apprehension of physical harm (1) such as to make it a natural consequence
(or reasonable) that the victim would seek to escape (2) and the victim is injured in
the course of escaping (3), the injury is caused by the accuseds conduct.
The test is objective and asks would a reasonable person have foreseen the result. If
yes, the act is a natural consequence. However, if Vs act is so unexpected that no
reasonable person could be expected to foresee it, then it is a voluntary act and
causation is broken. It must be remembered, as McHugh J points out, that persons
subjected to violence or the threat of violence do not always think rationally or act
reasonably. If a person suicided to avoid further torture and eventual death, I do not
see why the causal chain should be broken (this is obiter).
Blaue:
D stabbed V and pierced her lung. V refused a blood transfusion on religious grounds
(she was a Jehovahs Witness) and died.
Strict/Absolute liability
Intention
D intends to bring about the results or consequences (1) of his conduct (2).
Recklessness
D foresees the possibility (for common law offences) or probability (for Crimes Act
offences) of his actions producing a particular result (1), but nevertheless continues to
act (2). Depends on the foresight D actually possessed (subjective test).
Wilful blindness
D deliberately refrains from making enquiries because he prefers not to know the
result, or where D willfully shuts his eyes for fear he may learn the truth. Not a
substitute for actual knowledge, however, it can infer that D had the requisite
intention or knowledge that his actions would produce the result.
Knowledge
Ds care fell so far short (1) of the standard of care that a reasonable person (objective
test) would have exercised (2) that it warrants criminal punishment.
Contemporaneity
The AR and MR of an offence must occur at the same time. Where the AR is a
continuing act, the MR may be superimposed at any stage so long as the AR is still
continuing.
Definition of assault
History
The amendments to the Crimes Act in 1985 added the section Offences Against the
Person but did not abolish common law assault or common assault.1 Common law
assault is charged under the common law. Common assault is charged under s23
of Summary Offences Act and is committed basically (no aggravating factors).
Assault describes:
- Assault stricto sensu where V apprehends application of force or a non-
physical interference; or
- Battery application of force or physical interference.
Common law assault or common assault can be committed either way. The Crimes
Act deals with them separately.
1
Patton: amendment did not abolish common law assault and it continues to exist with the penalty at
the judges discretion (max 5 years).
Crimes Act assault, common assault and common law assault are all defined in the
common law.
Positive act
Ireland:
D made repeated silent telephone calls, mostly at night, to three Vs. As a result they
suffered psychiatric illness (anxiety and depressive disorders).
The English court held in cases of silent callers, He intends by his silence to cause
fear. The victim is assailed by uncertainty about his intentions. She may fear the
possibility of immediate personal violence. Whether D is guilty of assault depends on
the impact of the calls on the victim. D was found guilty.
Zanker v Vartzokas:
V accepted a lift from D. D offered V money for sexual favours which she rejected. V
demanded that D stop the car to let her out. D accelerated and then said I am going to
take you to my mates house. He will really fix you up. V opened the car door and
leapt out onto the road and was injured.
This is distinguished from Knight. In this case V received threatening phone calls
from D who was an appreciable distance away (as the Crown commented a long way
out of firing distance). Lee J found that Ds threats of violence were not immediate
because they were mere threats which may have been executed at any time, if at all.
Conditional threat
A conditional threat may constitute an assault if it causes the victim to apprehend the
imminent application of force.
Words can negate the conditional threat (State v Myerfield: as per Pearson CJ, when
the threat to strike is explained by words showing that it is not the intention of the
party to strike, this is not an assault).
Rozsa v Samuels:
D, a taxi driver, parked his car at the head of the taxi rank. V, another taxi driver,
threatened that if D did not move his taxi he would punch him. D produced a knife
and made the conditional threat, I will cut you to bits if you try.
Justice Hogarth of the Supreme Court of SA held that If the condition is one which
the party has a right to impose, the threat to strike unless the condition is complied
with is not an assault. But if the condition is one that the party has no right to impose,
the threat to strike is an assault. His Honour found the test in this case to be; if V had
attempted to punch D, would D have been justified in defending himself using the
knife (is it a proportionate response)? If yes, there would be not assault. D was found
guilty.
Requires the unlawful application of force. Mere touching is sufficient. Injury does
not need to be caused. If, however, injury results D may be charged with aggravated
assault if it is more than minor.
Direct application
Mens rea
Intentional
Reckless
Actus reus
Cause
Injury
Defined in s 15:
Injury includes: unconsciousness, hysteria, pain and any substantial impairment of
bodily function. This last requirement limits the application of the preceding words
(pain, hysteria etc must substantially impair bodily function).
Inclusive definition. It is not an exhaustive list and shows types of examples injuries
analogous to these could be claimed.
Psychiatric injury can be included. Ireland: the words bodily harm were capable of
covering recognised psychiatric illnesses, such as an anxiety disorder or a depressive
disorder, which affected the central nervous system of the body. Those neuroses had
to be distinguished from simple states of fear, or problems coping with everyday life.
s 15:
Serious injury includes a combination of injuries.
However, this is inclusive SI is not limited to just a combination of injuries (it can
include a single severe injury). Similar to the common law concept of grievous
bodily harm bodily injury of the grave character (Spartels).
Threats
Endangerment
Mens rea
Intention
D must intend to cause the result. An intention to perform an act that in fact causes the
result is insufficient (the intention required is an intention to [cause an injury]
Westaway).
However, there is no requirement that the injury that results is the injury intended. The
intention is to cause an injury.
Negligence
The standard of negligence required is the same as for the offence of negligent
manslaughter (found in Nydam).
Defences
Actual bodily harm is any hurt or injury calculated to interfere with the health and
comfort of the victim. Such hurt need not be permanent, but must be more than
merely transient or trifling (Donovan).
2
Only where the patient gives informed consent and the surgery is carried out by a qualified person in
appropriate conditions, and in a proper manner for legitimate medical purposes (Brown). Some
statutory protection is guaranteed where the patient is unconscious and cannot consent to surgery that is
deemed necessary (s 42K Guardianship and Administration Act 1986 (Vic)). The general defence of
necessity also removes liability.
3
Boxing must meet certain conditions to be lawful (refer to page 75 of W&W). These require that D
kept within the major rules of the game, the application of force was in a sporting spirit and it was no
more than was ordinarily and reasonably incidental (following as a consequence) to the sport (Pallante
v Stadiums Pty Ltd).
When a man of sound memory and of the age of discretion4 unlawfully kills5 any
reasonable creature in being,6 and under the kings peace,7 with malice aforethought,8
either express of implied by the law, the death taking place within a year and a day.9
Sir Edward Coke.
i. Voluntary act;
ii. Causing;
iii. Death;
iv. Of a human being.
4
D is sane and has reached the age of criminal responsibility (>10 years old) at the time of the offence.
5
Issue of causation (did D kill V?).
6
A human being.
7
Within the jurisdiction of the court.
8
Mens rea for murder.
9
Abolished (s 9AA of Crimes Act).
Prosecution needs to establish the precise voluntary act that killed the victim.
Examples of involuntary acts are found in Ryan (reflexes), Jiminez (automatism) and
Ugle (unwilled acts).
Ugle:
D claimed that V was attacking him with a cricket bat. D defended himself by using
his hand to push V away. D was holding a knife in this hand and consequently V was
stabbed, and died, as a result.
The High Court held that an unwilled act is not a voluntary act causing death. The
question of whether an act was willed or unwilled should be put to the jury. Ds
appeal was allowed.
Causing
Death
Of a human being
R v Hutty:
Legally a person is not in being until he or she is fully born in a living state. A baby
is fully and completely born when it is completely delivered from the body of its
mother and it has a separate and independent existence in the sense that it does not
derive its power of living from its mother. It does not matter whether the baby is still
attached via umbilical cord to its mother. All that is material is that it is living by
virtue of the functioning of its own organs.
However, D may be liable where the injury is caused to the child while in utero and
the child is then born alive and subsequently dies as a result of the injury.
The House of Lords overturned the Court of Appeals decision because the doctrine of
transferred malice was not applicable in this case; a double transfer (from the mother
to the foetus and then from the foetus to the child) is extending the legal fiction too
far. Also, Ds intention to harm the mother was accomplished, and thus spent, after he
stabbed V. This spent intent cannot then be transferred.
Thus:
a. Intent to harm foetus; foetus dies before birth = no crime against foetus.
b. Intent to harm mum; foetus dies before birth = no crime against foetus.
c. Intent to harm foetus; foetus dies after birth = murder.
d. Intent to harm mum; foetus dies after birth = UDA manslaughter.
Tests i-iv are subjective; it depends on what the accused actually intended or foresaw
(Pemble: they are a state of mind of the accused, an actual state of mind).
Intention
It cannot be presumed that the accused intended the natural consequences of their
actions. In Demirian, D1 and D2 planned to blow up a building. While positioning the
bomb under the intended location it exploded (natural consequence), killing D2.
McGarvie and OBryan JJ held that mens rea could only be shown if D2 had set, or
was in the process of setting, the bomb (because he did that act with intent to kill or
with knowledge that it would probably kill). If the act that caused it to detonate
Recklessness
Foresight of probability
A person who does an act knowing that it is probable that death or grievous bodily
harm will result is guilty of murder Crabbe.
Wilful blindness
Transferred malice
Defined in statute.
Act of violence
The act that causes death must be intentional, even though its consequences are
unintentional (Ryan). In the case of Butcher, presenting the knife at Vs stomach
whilst standing a meter from him was the intentional act.
This does not apply to all offences committed violently, only to crimes that cannot be
committed without violence.
Butcher:
D was robbing a milk bar when its owner, V, advanced towards him and impaled
himself on a knife D was holding. D said he was only using the knife to frighten V
and did not intend to stab him. Counsel for D submitted that armed robbery did not
have violence as a necessary element since a threat of force could be used.
The Full Court of the Supreme Court of Victoria held that violence is not restricted to
physical force. It includes both putting a person in fear or seeking to put a person in
fear of being subjected to force. Violence is thus a necessary element of robbery.
Mens rea
Lawful arrest
Types of manslaughter
Voluntary manslaughter: both the actus reus and mens rea for murder have been
established but the liability is reduced to manslaughter because of some mitigating
circumstance (infanticide, suicide pacts or defensive homicide).
Involuntary manslaughter: the actus reus for murder has been established but the
accused does not possess the mens rea required for murder. There are three types:
unlawful and dangerous act manslaughter, negligent manslaughter and manslaughter
by omission.
Unlawful act
The unlawful act must be committed voluntarily (R v Williamson: D must have made
a conscious choice to do an act of the kind done. In this case D struck V with a knife
not knowing that he was holding the knife. The SA Court of Appeal agreed that it
should have been left to the jury whether D striking V with a knife in hand was a
voluntary act. Doyle CJ found for his act to be voluntary D must have known he had
the knife in his hand; otherwise he would not be conscious of the nature of the act).
All the elements of the offence must be established. In R v Lamb, D pointed a partly
loaded revolver at V. Thinking that there was no bullet in the chamber D pulled the
trigger. The gun discharged and V died. The conviction for manslaughter was quashed
on appeal because there was no assault (as V did not apprehend imminent physical
harm).
Caused
Dangerous
Test is objective.
The test of dangerousness is whether a reasonable person performing the same act as
the accused would have realised that he was exposing another or others to an
appreciable risk10 of serious injury11 (Wilson). The act must always (intrinsically) be
dangerous, as opposed to dangerous because of the way in which D performed the act
(extrinsically).
10
Appreciable risk < probable risk (it can be an act neither intended nor likely Wilson). It is a
possibility of risk that is real or significant, rather than remote or fanciful (C&M).
11
Serious injury = falling short of GBH but not being of trivial or negligible character (Wilson). In
Wilsons case, D punched V in the head and this satisfied the test.
Negligent
The test for negligent manslaughter is found in Nydam and involves the following
elements. The act causing death:
i. Was done consciously and voluntarily;
ii. With no intention or foresight to cause death or GBH (otherwise it would be
murder);
iii. Involved a falling short of the standard of care that a reasonable person
would have exercised;
iv. Involved a high risk that death or GBH would follow; and
v. That the doing of the act warrants criminal punishment.
Duty of care
At common law there is a general duty not to cause harm to others (R v Doherty). If
an act of D causes the death of V, D is subject to this general duty.
Standard of care
(1) What was the standard of care owed by D to V? The standard of care owed = what
a reasonable person in the same situation as the accused would have exercised:
Nydam.
(2) Was there an objective falling short? A very high degree of negligence is required.
It must be shown that Ds conduct amounted to such a gross departure from the
standard of care expected of a reasonable person (1) (this is the preferred description
of negligence R v Stephenson) that it carried such a high risk of death or GBH (2)
and therefore the doing of the act merited criminal punishment (3) (Nydam).
By omission
Similar to negligent manslaughter except D is liable for an omission and not an act.
Thus D must have been under a legal duty to act.
Legal duties
1. Family relationship
Parent and child (R v Russell). In this case Ds wife drowned herself and their
two children. D knew his wife was emotionally unstable but briefly left their
children in her care. The court held that there is a common law duty imposed
upon parents and guardians to ensure the safety of their children (including
preventing the commission of a crime against them by a third party). However,
a duty does not exist to those having the care of, or having under their
protection adults who are not helpless, but are quite capable mentally and
physically of looking after themselves. Hence D could not be liable for his
wifes death.
Instan:
Ds aunt V agreed that D could live with her provided that she was cared for.
V developed gangrene in the leg, which made her unable to look after herself
or move around. Only D knew of her condition. V died shortly afterward
because of the gangrenous leg, but accelerated by her lack of food, nursing
and medical care.
In this case taking upon oneself the performance of the moral obligation
created the legal duty owed by D to V. The court held that there was a clear
moral obligation, and a legal duty founded upon it; a duty wilfully
disregarded, and the death was at least accelerated, if not caused, by the non-
performance of the legal duty.
Taktak:
D, at the request of R, procured a prostitute, V, for a party. D brought V to Rs
house and collected her some time later. He found her drugged and
unconscious. D took V to his house and attempted to revive her before calling
a doctor several hours later.
The court held that the duty of care will arise where one person has
voluntarily assumed the care of another who is helpless, through whatever
cause. Such a duty of care arises when the accused assumes care in such a
way as to seclude [the victim] so as to prevent others from rendering or
obtaining aid. However, Ds conviction was overturned because his failure to
obtain medical treatment or assistance did not amount to a high degree of
negligence (the duty is only to take reasonable steps to rescue).
Miller:
D fell asleep smoking a cigarette and awoke to find his mattress smouldering.
Instead of extinguishing it, D moved to another room. The house caught fire
and caused extensive damage.
The court found D guilty of arson because of his omission to act when he
became aware of the dangerous situation that he had created. This applies
when a person has unknowingly done an act which sets in train events that,
when he becomes aware of them, present an obvious risk and he fails to try
to prevent or minimise the damage which will result from his initial act,
although it lies within his power to do so. This is similar to the courts
decision in Fagans case.
Standard of care
Self-defence
The accused bears the evidential burden (whether there is sufficient evidence for the
defence to go before the jury) and the prosecution bears the legal burden to
disprove it beyond reasonable doubt.
The Crimes (Homicide) Act 2005 (Vic) codified self-defence for murder and
manslaughter only. The common law of self-defence is still used for offences other
than homicide (such as assault, resisting arrest etc).
V was Ds tenant whose relationship had deteriorated due to Vs failure to close the
security gates or park his car in the garage. D arrived home one night and noticed the
gates were not closed nor was Vs car in the garage. D confronted V at his unit. V
stabbed D and threatened to blow [his] head off. D ran to his unit and saw V go to
his car where he believed V had a gun. D loaded his gun and shot V dead.
The test for self-defence was held to be Whether the accused believed (i) upon
reasonable grounds (ii) that it was necessary in self-defence to do what he did.
However, these factors are important in determining whether the accused believed his
act was necessary.
Provocation
Both men and women are most likely in kill in the context of sexual intimacy12
(27.5% and 34.5% respectively). The next most common context is conflict
resolution13 (27.6% and 21.6%). Followed by spontaneous encounters for men
(11.1%), and sexual predation and mental impairment for women (both 3.4%).
17% of all homicides involved domestic violence.14 20.7% (6 out of 29) of all accused
women killed men due to alleged violence by the man against the woman.
12
Sexual intimacy homicide is the killing of a partner or former partner, or a partner or former partners
new partner. These include killings by partners or former partners because of jealously or a desire to
control the deceased, incidents involving the killing of sexual rivals and incidents where a person kills
a violent partner or former partner.
13
Conflict resolution homicide is killings that resulted from a planned intention to use violence to
resolve a dispute.
14
Domestic violence is defined as violence [which] happens in the family. It includes any behaviour
which causes damage to another person (physical, sexual, emotional or financial) or which causes
someone to live in fear. It includes damage to property and threats to damage a person, pets or property.
No women killed strangers. 17 men out of 153 (11.1%) were charged with killing a
stranger. Consistent with Polks study, spontaneous encounter homicides are an
overwhelmingly male phenomenon.
Pleas
Sentences
The median sentence for men and women convicted of murder was 18 and 17 years
respectively (although in the context of sexual intimacy the sentences were divided;
18 and 14 years). The median sentence for manslaughter was 6 and 4.5 years.
Defences
10.3%, 3 of 29, women raised provocation while it was raised by 19.0% of men (this
represented 25.0% and 30.9% of the defences raised). Similarly, 6.9% (2) women
raised self-defence while 12.4% of men raised it (or 16.7% and 20.2% of the defences
raised).
Neither defence was successful for women. Meanwhile, men succeeded in 21.1% of
self-defence cases and 24.1% of provocation cases.
Juries tended to associate self-defence with a one-off confrontation rather than actions
taken in self-protection. Lloyd describes it as a one-time barroom brawl between two
men of equal size and strength.
Both i. and ii. do not accommodate for the greater physical strength of men. In general
women have to plan their attack and/or use weapons. This questions the
reasonableness of their actions. Hence the VLRC concluded that self-defence was
usually only useful to men.
Women often kill their partners when they are asleep or have their guard down. In a
study of intimate partner homicides in NSW between 1968 and 1991, Alison Wallace
found that in 48% of cases where the women had killed their husbands there was no
immediate threat or attack.
ii. Proportionality
Of the women killed in the context of sexual intimacy, at least 23.3% (or 14 cases)
were killed when they left, or threatened to leave, the relationship.
What is it?
Under traditional self-defence, acts by the accused to prevent harm that was not
immediate or imminent are not defensive because the danger was avoidable. The
accused is blamed for not leaving; for inciting the violence; for enjoying the violence;
or, for her passivity in not circumventing the violence. To combat these
preconceptions, battered women syndrome is used.
The main proponent of the syndrome, Lenore Walker, defines as a battered woman as:
- A woman who is repeatedly subjected to any forceful physical or psychological
behaviour by a man;
- Who she is in any form of intimate relationship with; and has
- Gone through the battering cycle at least twice; and
- Remains in the situation.
15
Defined by Sheehy, Stubbs and Tolmie as the introduction of expert opinion evidence, otherwise
inadmissible, to both counteract preconceived stereotypes of battered women and to explain why the
perception that they were under serious threat and needed to use deadly force to deal with it may have
been reasonable.
Battered-women syndrome can help the jury to understand the reasonableness of her
actions (whether the domestic violence justified the accused killing her abuser): the
inevitableness of the next attack and why the woman did not leave.
How it helps
Inevitableness:
Domestic violence is cyclical. According to Walker it involves three stages:
1. Tension building verbal, emotional or minor incidents of physical abuse;
2. Acute battering incident; and
3. Loving contrition the batterer is remorseful for their behaviour and may
attempt to convince the victim that they intend to change.
A battered womans intimate knowledge of the deceased and the cyclical nature of
domestic violence can enable her to predict the next inevitable attack, not obvious to
an outsider.
Kinports describes that a woman experiencing learned helplessness learns that her
husbands violence is unpredictable and that no correlation exists between her conduct
and his abusive behaviour. She can do nothing to pacify her husband. She perceives
her husband as omnipotent and believes there is no way for her to escape or improve
her life.
Should it be used?
Criticisms:
- ODonovan argues neither judges nor the jury believe they need experts to tell
them about human nature, about how ordinary folk react to the strains and
stresses of life. Sheehy, Stubbs and Tolmie see the need for expert witnesses as
placing the issue beyond the understanding of the lay juror.
- It labels battered women as crazy. Instead of portraying their actions as
justified in those circumstances, it treats them as irrational and abnormal. It
directs attention away from the social, economic, political and cultural factors
that perpetuate, condone or sanction violence and towards the psychology of the
victim (Craven);
- Learned helplessness does not explain why a woman suddenly broke from this
state and killed her abuser; and
- Generalises an experience that is not always similar. The use of model cases of
BWS create a single construct that might then exclude women who do not fit the
normal, accepted, formulation (as Sheehy, Stubbs and Tolmie argue, it could
create a test of what is reasonable conduct for a battered woman. Thus
removing the focus from whether the action she took was necessary and
justifiable in the circumstances.)
Craven argues that instead of using BWS, a social framework model of evidence
should be used. This model would allow the use of expert evidence not just relating to
the accuseds psychology, but the social and economic factors surrounding her
decision. She uses the case of Gilbert, where an Aboriginal elder and Aboriginal
Police Liaison Officer testified, as a positive development towards such a social
framework model.
i. Codification
Self-defence should not be available if the accused was responding to conduct that he
or she knew to be lawful. In Zecevic the court held it is only in an unusual situation
that an attack which is not unlawful will provide reasonable grounds for resort to
violence in self-defence.
The VLRC supported a submission by Zoe Rathus to the Queensland Criminal Code
that said the personal history of the defendant and the history of any relationship
between the defendant and the person against whom force is used and the effects of
that relationship upon the defendant are relevant.
The Womens Legal Service Victoria advocated that there should be no duty to
retreat from ones home where there has been a history of prior family violence.
iii. Inevitability
Per Justice Kirby in Osland v The Queen, The significance of the perception of
danger is not its imminence. It is that it renders the defensive force used really
necessary and justifies the defenders belief that he or she had no alternative but to
take the attackers life.
iv. Proportionality
It should be specified in the Crimes Act that the use of force might be reasonable even
if it is disproportionate.
v. Excessive self-defence
For:
- Provides an additional basis for a plea of manslaughter to be negotiated or
charged;
- Retains a safety net for women who kill in response to family violence (in R v
Calway the availability of self-defence might have mitigated the verdict of
murder. In this case Ms Calway killed V, her stepfather, during a fight where she
Against:
- May cause juries to enter compromise verdicts, where the facts of the case entitle
an acquittal but there is disagreement amongst jurors.
- The word excessive is a male interpretation of the situation and perpetuates
laws dependence on a male norm. As Susan Edwards argued in a submission to
the VLRC, in self-defence women use a force proportionate to the a priori
disproportionate force of men to achieve some notion of equality. Hence it
should not be typecast as excessive.
New amendments
No provision about battered woman syndrome. Leaves several problems regarding its
application:
i. Who can claim to be a battered woman?
In England, the use of expert evidence will only be allowed if the effect was
such to make the woman a different person from the ordinary run of [women]
or that she was marked off or distinguished from the ordinary [woman]
(Ahluwalia).
In America an accused was held not to be a battered woman because she had
only experienced one prior cycle (State v Griffiths) Walker has now concluded
that BWS can include one or more cycles. The legislation also agrees that
domestic violence can be alleged where there is a sole incident (however, does
this apply to BWS?)
ii. Who can be called as an expert witness?
Currently it is restricted to medical psychologists. Sheehy, Stubbs and Tolmie
recommend that it should be extended to shelter workers, feminist counselors
and women who have lived in violent relationships it needs to include people
that do not explain social problems in terms of individual pathology.
The legislation talks about evidence but not what kind;
Current law
R v Donovan [1934]
R v Brown [1994]
Facts: 5 defendants were charged with assault causing actual bodily harm, and
unlawful wounding. They were involved in sado-masochistic homosexual sexual
activities for a ten-year period. The activities were discovered when one of the
videotapes was handed to police.
Kell observes that the courts in Brown and AGs Reference (No 6 of 1980) view
consensual harm in terms of social utility, that is, it must be shown that the public
interest positively requires that such conduct be permitted.
Held: Consent is not available for actual bodily harm or greater (GBH or murder).
Majority:
Lord Templeman:
- Morally repulsive; Pleasure derived from the infliction of pain is an evil thing;
- Alcohol and drugs were used to obtain consent. Youths were involved = moral
corruption;
- Vitriolic judgment; sado-masochistic sex involves the indulgence of cruelty by
sadists and the degradation of victims, bloodletting and the smearing of human
blood and which breed and glorify cruelty; and
Lord Jauncey:
- Agreed with Lord Lane in Attorney Generals Reference (No 6 of 1980) that it is
unlawful to cause bodily harm for no good reason. and
- If the legislature wants sado-masochistic sex to be legal, they should legislate
permitting it. Criticism: Usually the law proscribes acts as illegal; it does not
state acts that should be legal.
Lord Lowry:
Sado-masochistic homosexual sex is not conducive to enhancement of the family life
or public good. If it were permitted, everyone would engage in it.
Minority:
Lord Mustill:
- Issue under contention is not whether their conduct is morally right, but
whether it is properly charged. The question is of law and not morals;
- The law has no right to legislate over private acts. Questions of private morality
are to be upheld by the individual according to his own moral standards, or
moral, religious or community pressures if he chooses to take them into account;
- If the law wants to legislate over private acts, it must be done by the legislature
who has the adequate capacity and means to do so; and
- By applying Donovan, Lord Mustill concluded that because it involved sexual
relations the acts were not automatically criminal. As the risk of serious harm
was negated by medical science, arguments of public policy did not justify
making such conduct unlawful.
Lord Slynn:
It is the legislatures role to intervene in private activities. The courts should not
exercise paternalism.
Facts: The defendant branded his initials onto his wifes buttocks using a hot knife.
Held: The defendant was found not guilty because Mrs Wilson commenced the acts
(1) and there was no aggression involved (2). Lord Russell did not see Ds acts as a
proper matter for criminal investigation.
The injuries sustained in both Brown and Wilson, and the consensual support of the
victims in each, are very similar. It seems that the difference in outcome was found in
the matrimonial relationship between defendant and victim and that Brown involved
sadomasochistic sex.
Criticisms
Reform
The position for consent should be clearly defined by the legislature, including:
i. What cannot be consented to;
ii. The exceptions available (preferably specific ie tattooing, surgery, boxing
but could apply generic principles such as social interest); and
iii. The circumstances under which the exceptions operate (ie tattooing by a non-
registered tattoo artist is illegal).
Other jurisdictions
Definitions
South Australia
It provides that the stalker must intentionally cause physical or mental harm, or
apprehension or fear, in the victim or another person by engaging in certain conduct
(following, loitering, gives or leaves offensive material, or surveillance) on at least
two separate occasions.
Queensland
Divides stalking into harassing behaviour with a penalty of three years imprisonment,
or a summary option carrying 18 months imprisonment; and aggravated stalking, for
threats of violence, possession of a weapon, or breach of a court order, with a penalty
of 5 years.
Conduct that would normally constitute stalking is lawful if it was done for the
purposes of a genuine industrial dispute or political or other public dispute or issue
carried on in the public interest. Goode argues that such a vague provision severely
limits the operation of the offence.
Stalking is an intimidation offence and is limited to cases where the stalker and
victim have a domestic relationship.
California
Stalking originated in the United States. California was the first jurisdiction to
legislate against this behaviour in response to the stalking of celebrities by strangers.
Where to harass means a knowing and wilful course of conduct directed at a specific
person which seriously alarms, annoys, or harasses the person and which serves no
legitimate purpose. The course of conduct must be such as would cause a reasonable
person to suffer substantial emotional distress, and it had that effect.
A credible threat is one with the intent and the apparent ability to carry out the threat.
The threat must be against the life of, or to cause great bodily injury to, the person or
their immediate family.
Goode proposes that any stalking legislation should include these 8 options:
i. Conduct that constitutes stalking should be as broad as possible, since the
options available to the stalker are as boundless as the obsessive human
imagination;
ii. It is a pattern of conduct and not just a single incident;
iii. Stalking should be an indictable offence punishable by more than 2 years
imprisonment;
iv. Aggravated stalking, that is, stalking in breach of an injunction or restraining
order or whilst armed with a weapon, should carry a higher penalty;
v. The threat need not be credible (an undefined threat may heighten the fear
because it is left to the imagination);
vi. Stalking will not apply where the behaviour serves a legitimate purpose (these
should be explicitly specified to limit ambiguities);
vii. Intent is not required (as McAnaney argues, if intent is needed this may mean
that anti-stalking statutes will not reach people who, because they are
delusional or otherwise, are not capable of forming the intent);
viii. The development of a specialist unit within the police force, such as the Threat
Management Unit within the Los Angeles Police Department. This department
assesses the threat posed by stalkers, informs stalkers that the police are aware
and concerned of their behaviour, and talks to the victim (about security and
help with getting a restraining order). Also beneficial would be profiles of kinds
of stalkers16 to ensure that the invention taken is the most suitable for that kind
of stalker. It is a dynamic solution to ensure the stalking does not escalate into a
more serious crime.
16
There is difficulty in defining stalking patterns. Goode presented five typical stalkers: simple
obsessional, love obsessional, erotomania, or false victimisation syndrome. Path, Mackenzie and
Mullen placed the typical behaviour into five slightly different categories: rejected, intimacy-seeking,
incompetent suitor, resentful, or predatory.
Problems
Stalkers can use a third party, often unwitting participants, to achieve their aims.
Mullen, Path and Purcell call this stalking by proxy. Such outcomes include:
i. Tracing escaped victims
Methods used by stalkers include asking police for their victims new address to
ensure compliance with his Intervention Order, or making complaints or
initiating false civil action against the victim;
ii. Contributions to harassment
The stalker falsely accuses their victim of being the stalker. This is especially
dangerous to professionals (doctors, government officials) because considerable
weight is given to those complaining against individuals in potentially powerful
positions.
The use of the reasonable person standard in some stalking provisions
(Californian law) permits examinations of the victims character, mental health
and stability (Abrams and Robinson), adding to the emotional distress; and
iii. Enforcing unwanted contact
During court proceedings (for the victim to testify at trial). As Madonna
commented when she was forced to testify, We have somehow made his
Procedural solutions:
i. Use video link in court for protection orders, family court cases, hearings
against the stalker, or any situation where the stalker comes into direct contact
with the victim (especially important for intimacy-seeking stalkers);
ii. The law enforcement agencies should make every effort to identify and penalize
false reporting by stalkers;
iii. All stalkers, upon being convicted, should have a mental health assessment
performed (to target and hopefully solve the root of the problem);
iv. All law enforcement agencies should be trained on stalking; and
v. There must be a multidisciplinary approach between the agencies to ensure the
sharing of information and the active, periodic, monitoring of stalkers and their
victims to prevent re-offending and/or escalation.
Background
The Victorian legislation is an almost identical replication (apart from the penalties).
Victoria is also the only state where the abortion provisions remains largely intact
(although concessions to its draconian provisions have been made by the judiciary).
Legislation
s65: Whosoever being a woman with child with intent to procure her own miscarriage
unlawfully administers to herself any poison or other noxious thing or unlawfully uses any
instrument or other means, and whosoever with intent to procure the miscarriage of any
woman whether she is or is not with child unlawfully administers to her or causes to be taken
by her any poison or other noxious thing, or unlawfully uses any instrument or other means
with the like intent, shall be guilty of an indictable offence, and shall be liable to level 5
imprisonment (10 years maximum).
s66: Whosoever unlawfully supplies or procures any poison or other noxious thing or any
instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or
employed with intent to procure the miscarriage of any woman, whether with child or not,
shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years
maximum).
The UK Parliament did not attempt to explain the term unlawfully, leaving it to the
judiciary to interpret this fundamental aspect of abortion law.
R v Wald (NSW):
Superclinics:
NSW Court of Appeal (the highest court so far to consider abortion) approved the
decisions in Davidson and Wald. The majority made clear that it is the medical
practitioner who determines whether an abortion is lawful; there is no womens right
to an abortion (a womans desire to have an abortion is not justification in itself).
Criticisms
Reform
In all states only medical practitioners can lawfully perform abortions (providing for
the medicalisation of abortion).
17
Most abortion service providers do not perform abortions past the 22-week period.
South Australia
South Australian legislation is the least restrictive (apart from ACT) because it does
not require serious danger and the opinions can be formed in good faith. However,
it is still a complicated and lengthy process.
Northern Territory
18
In forming this opinion, the practitioners may take into account the womans reasonably foreseeable
environment.
19
The two opinions must be provided in certificate form.
Legislation provides that neither the woman nor the practitioner will be charged with
an offence for procuring an abortion. However, WA legislation involves significant
delays that increase the risk of the termination procedure.
Tasmania
The new provisions involve a mix of South Australian and Western Australian
legislation.
20
Informed consent means consent freely given by the woman after a medical practitioner has;
provided her with counselling; offered her the opportunity for further counselling; and, informed her of
the counselling available if she terminates or continues. This medical practitioner cannot be involved in
the performance of the abortion.
Tasmanian legislation is more restrictive than the two jurisdictions its provisions are
derived from because; it requires the certification of two medical practitioners (unlike
WA); and, it requires the provision of counselling because of informed consent
(unlike SA).
Rankin laments this new legislation because it simply repeats the mistakes of others
and furthers the medicalisation of abortion. As he comments, the only rights with
regard to abortion are possessed and exercised by the medical profession. As the
Womens Electoral Lobby state, the key issue is that legally, doctors decide whether a
woman can have an abortion women do not have control over the decision.
Definitions
Active euthanasia: the medical practitioner takes direct steps to accelerate death (ie
inflicting a lethal injection).
Passive euthanasia: the medical practitioner withdraws or withholds treatment to
accelerate death.
Current law
Active euthanasia
This is because the interest of the state in preserving life overrides the otherwise all-
powerful interest of patient autonomy (per Lord Mustill in Airedale NHS Trust v
Bland).
One action has two effects; one intended and one foreseen. This action is morally
acceptable provided that (Patterson and George):
i. Bad consequences are only side-effects to the intended purpose;
ii. The intended purpose must itself be morally good or (at least) neutral;
iii. Bad consequences must not be a means of achieving the intended purpose; and
Applying this doctrine to euthanasia; the application of high levels of pain killers to
alleviate the patients pain, which will most likely cause their death, will be morally
right if death is proportionate to the pain relief gained.
Finnis would argue that since life is a basic good, and life is required to experience the
other six goods, the bad consequence of death would never be outweighed. Hence
euthanasia will always be wrong. The courts, however, in approving this doctrine are
implying that personal autonomy is more important than death (R v Adams21 and R v
Cox22).
Passive euthanasia
Bland:
Held: The removal of the feeding tube was an omission and not an act. Non-voluntary
passive euthanasia is legal. Hoffman LJ stated, The law must reassure people that the
courts do have respect for life, but that they do not pursue the principle to the point at
which it has become almost empty of any real content and when it involves the
sacrifice of other important values such as human dignity and the freedom of choice.
Lord Keith held that a doctor is under no duty to continue to treat such a patient where
21
It is permissible to relieve pain and suffering even if the measure incidentally shortens life.
22
If a doctor genuinely believes that a certain course is beneficial to a patient then even though he
recognises that that course carries with it a risk to life, he is fully entitled to nonetheless pursue it.
For
Against
- Inconsistent with the Hippocratic Oath (the health of the patient shall be the
doctors first consideration) and the role of the doctor in society. Allowing
doctors to kill, it is argued, will make doctors less sensitive to human suffering
and become more indifferent to the value of human life (Bagaric);
- Sanctity of human life; and
- Slippery slope argument. Legalising euthanasia will make it commonplace and
will put subtle pressure on the ill and the elderly to do the right thing by their
family or the state and choose death even when they do not desire it
(Patterson and George). See page 10.
History
The Rights of the Terminally Ill Act 1995 (NT) legalised voluntary and non-voluntary
active euthanasia for terminally ill patients.
It was overruled by the Euthanasia Act 1997 (Cth); the power of the Legislative
Assembly does not extend to the making of laws which permit of have the effect of
permitting the form of intentional killing of another called euthanasia. Only the
territories are affected by this legislation (not the states).
24
Finnis condemns this policy argument because a persons life is incommensurable with the life of
another. Hence one cannot be killed to free a bed so another may live.
25
This doctrine arises to ensure that individuals are not burdened with responsibility.
s7: A doctor may assist a patient to end his life only if all of the following conditions are met:
i. 18 years old;
ii. The medical practitioner is satisfied, on reasonable grounds, that -
(i) Illness will, in the normal course and without the application of extraordinary
measures, result in the patients death (terminal illness);
(ii) No cure; and
(iii) Treatment is confined to the relief of pain, suffering and/or distress.
iii. A second doctor, not a relative or employee of the first, has examined the patient and has
confirmed
(i) The first doctors opinion;
(ii) Patient is likely to die;
(iii) The first doctors prognosis; and
(iv) Patient is not suffering from a treatable clinical depression.
iv. The illness is causing the patient severe pain or suffering;
v. The doctor has informed the patient of the nature of the illness and its likely course and
the palliative care available to the patient;
vi. The patient then indicates he has decided to end his life;
vii. The doctor is satisfied the patient has considered the implications of his decision to his
family; and
viii. The patient is of sound mind, and the decision has been made freely, voluntarily and after
due consideration.
Amarasekara argues that if the basis of the act is compassion, then it is discriminatory
to deny people who experience pain the right to die simply because they fall into one
of these categories. Their pain may be equally as agonising as that of the model
The Act is paternalistic; it legalises a right to die but then makes it only available to
certain people; limiting an individuals autonomy and right to self-determination. JS
Mill would label this the tyranny of the majority. Dworkin26 and Rawls27, however,
would argue that autonomy requires a capacity for personal reflection and
consideration. Thus the four groups above cannot exercise their autonomy.
Amarasekara then points out that if the blinding, severe, pain needed to qualify
under this Act also mentally impairs the terminally ill, their autonomy should be
restricted. Kuhse and Gardbaum argue that autonomy is not absolute, as it can
sometimes result in morally reprehensible decisions (drugs, willing enslavement are
two examples given by Amarasekara).
Medical practitioners
The original act provided that the second doctor must hold a diploma of
psychological medicine or its equivalent. This was changed after it was revealed that
this qualification had been unavailable since 1970. Amarasekara uses this to highlight
how little research was placed into the qualification of doctors who perform
euthanasia.
The Act also allows the doctor to delegate causing the patients death to a health care
provider (those responsible for the care or medical treatment of the patient in nursing
26
Autonomy requires people to define their nature, give meaning and coherence to their lives and take
responsibility for the kind of person they are.
27
Acting autonomously is acting from principles that we would consent to as free and equal rational
beings, and that we are to understand in this way.
s8(1): A doctor shall not assist a patient if, in their opinion, there are palliative care options reasonably
available to the patient to acceptably alleviate their pain and suffering.
At the time of the passing of this Act, the Northern Territory had no medical
oncologist,28 very limited radiotherapy services, not a single palliative care specialist,
an inadequately resourced domiciliary palliative care program29 and not a single
hospice30 (Dr J Zalcberg). Such inadequacies in palliative care options make section
8(1) largely redundant. It also makes euthanasia a more favourable alternative than if
the patient were residing in Victoria or NSW where there are improved palliative care
facilities.
Potts believes the legalisation of euthanasia will result in fewer hospices and a
reduced budget for palliative care, resulting in increased pain for those who do not
want euthanasia.
Interpreters
There were no qualified interpreters in the Aboriginal laws at the time of the Act,
despite being required.
Penalties
s5: A person shall not give or promise any reward or advantage, or cause or threaten any disadvantage,
28
A doctor who looks at tumours, including their development, diagnosis, treatment and prevention.
29
Home palliative care option.
30
A program that looks after people at home or some other facility.
s11(1): A person shall not, by deception or improper influence, procure the signing or witnessing of a
certificate of request. Penalty: $20,000 or 4 years imprisonment.
(2). A person found guilty of this forfeits any financial or other benefit the person would directly or
indirectly obtain as a result of the death of the patient.
s12: Failure by the doctor to keep adequate medical records. Penalty: $10,000 or 2 years imprisonment.
Doctors around Australia perform euthanasia under the risk of convictions of murder
or manslaughter (carrying penalties far in access of those created by this Act). This is
evidenced by the written admissions by seven doctors in 1995. No criminal
prosecutions were made. The Act reduces legislative penalties and is likely to increase
the practice of all euthanasia (not just involving the patients permitted by this Act
Amarasekara).
Immunities
s20(1) A person will not be liable for anything done in good faith and without negligence in compliance
with this Act.
If a doctor acts negligently in assisting suicide, he will only be liable for civil or
criminal action if he was not acting in good faith nor was he acting in compliance.
Amarasekara argues that this is irrational; If the three elements are treated
disjunctively there will be greater accountability and more care in observing the
procedural steps.
Certificate of request
s9(1): A delegate may sign the certificate of request if the patient is physically unable to ((2) the person
who signs forfeits any financial or other benefits, direct or indirect, from the death of the patient).
Coroners Role
The Act does not require the Coroner to be informed of assisted deaths. Amarasekara
believes that this should be amended so that the Coroner plays an active role. He
argues that the Coroner should be:
i. Informed as soon as a patient indicates the wish to die;
ii. A witness to the signing of the certificate of request; and
iii. Informed after the death has occurred.
This ensures that the statutory procedures are being adhered to and makes most
inquests unnecessary (the increased cost resulting from the Coroners time will be
offset by the security added to the process).
Reform
Statistics
31
Taken out of a sample of 33 Queensland politicians.
A majority of the Supreme Court in Rodriguez v A-G for British Columbia held that
the interests of the state in protecting its vulnerable citizens superseded the individual
rights of a citizen who sought it.
England
The House of Lords Select Committee on Medical Ethics rejected the legalisation of
euthanasia in 1994 after using Holland as a case study. They were discomforted by the
frequency of non-voluntary euthanasia. They were also daunted by the slippery
slope argument; the anticipated pressures on sick and elderly people who saw
themselves as a burden (by relatives, doctors or nurses). This argument is
demonstrated by the evolution from the precedent in Bland to that set by the Irish
Supreme Court in Ward and then the Dutch Supreme Court in Chabot.32
Belgium
Oregon, America
Death with Dignity Act 1994 was the result of a public referendum. This act legalises
voluntary active and passive euthanasia, only if the patient is physically and
terminally ill. A person may make a written request to obtain medication for the
purpose of ending their life.
Holland
32
33