What happened...

Two recent Australian criminal cases have raised interesting issues about our understanding of the criminal justice system. In February, in the Western-Australian District Court, the first Australian to be convicted of manslaughter over a dog attack was sentenced to jail. In 1995 the defendant’s Rottweiler dogs mauled a woman to death in a suburban backyard. The judge found that this was the result of "gross culpable negligence" and deserved a jail term.

In the second case, a woman was allowed the right to appeal a criminal conviction to the High Court. Her conviction stemmed from a 1996 Victorian Supreme Court case in which she was tried and convicted for murder. Nothing unusual there, you might say – but in this case the murder was actually committed by the woman’s son, who struck his step-father (and the woman’s husband) with an iron bar. The trial judge found that the woman induced her son to carry out the murder after they had drugged him and prepared a grave. Her defence was that she feared for her life, that her husband had "provoked" her to commit the murder, and that she acted in self-defence. According to her testimony, he threatened to kill her and the children, and regularly indulged in various forms of physical and sexual violence.

The two cases are on appeal, so we can’t comment on the judgements, but they present interesting questions about the nature of homicide and the possible legal defences.

What’s murder?

A lot turns on how we define murder. Do you have to physically commit the crime, or can you get someone else (or even your dogs) to do it for you (and still be personally responsible)?

"Homicide" is the killing of a human being – whether it is also "murder" (or perhaps manslaughter) depends on how it is characterised by the courts. For example, it may be lawful to kill a person in self defence, or a person may die when death was not intended (manslaughter), but to murder there must be an intention to kill or do very serious harm that does not attract these or other defences.

What’s manslaughter?

Manslaughter is usually distinguished from murder by the nature of the act (you did not intend to kill) or a "mitigating" circumstance, that is, the charge of murder can be reduced to manslaughter because of a defence such as "provocation". So, you could be guilty of manslaughter when you killed a pedestrian as a result of your negligent driving, even though you did not intend to kill anyone. On the other hand, you may have intended to kill another person, but you claim you were provoked by the act of the victim.

Who commits the crime?

If you are accused of murder, it must be proved that you caused the death. A jury is expected to use their common sense in this decision - firstly, would the death have occurred "but for the defendant’s conduct?"; second, the defendant’s conduct must be the substantial cause of the death, and nothing should have intervened to cause the death. If there is intervention, the court will need to consider whether the defendant was a substantial contributor to the death. So you can be guilty of murder even if you didn’t "pull the trigger".

Reckless acts

What about a situation where you don’t mean to kill someone, but you set up the circumstances that clearly allow the death to occur? In other words, you are reckless – whether driving a car or failing to take care of a dangerous animal, etc.

You still have to foresee that some serious harm will take place (either death or injury), although the degree of the harm needed to establish reckless murder differs from State to State. Nevertheless, to be convicted, you have to know that your actions will probably cause death or serious injury; that you take the risky action anyway; and that the decision to take that risk is unjustified.

For instance, if you deliberately drive through a red light late at night and at high speed, you have taken a very serious (and reckless) risk – it would be difficult to argue that you did not appreciate the substantial risk of killing another driver or pedestrian. If you let your dogs loose in the street, and you know they are dangerous and perhaps capable of mauling, it should not come as a surprise if they seriously harm someone. In this case you may be convicted of manslaughter by "criminal negligence". This is because you committed a negligent act (as opposed to one that is "reckless" and more likely to do harm), but you did it without taking care in a situation where there was a likelihood of death or serious injury. On the other hand, if your attack dog is trained to kill strangers and you let it loose, that may amount to murder.

Provocation

This is a defence to murder – yes, you still committed murder, i.e. you intended to kill or seriously injure the victim, but you were "provoked". This doesn’t mean you get off, but the charge is reduced to manslaughter. It is the prosecution's job to show, beyond a reasonable doubt, that the alleged provocation did not in fact lead the defendant to lose control and commit the murder.

This last element is very important – you have to commit the act in a sudden and temporary loss of self-control. What about a premeditated planned act of killing that is (allegedly) the result of years of violence and threats of death – is that provocation? This raises the issue of the so-called "battered woman syndrome". Do years of physical and emotional abuse, including threats to kill, amount to an immediate threat to the woman’s life? This is something that Australian courts are still considering. But if not provocation, what about self-defence – after all, if you are threatened with violence or death, doesn’t that mean you are entitled to defend yourself?

Self-defence

This is different to the defence of provocation, because if successful, it actually excuses the killing and makes it "lawful". It’s not a complicated question – as the High Court has said, "...it is whether upon reasonable grounds that it was necessary in self-defence (for the defendant) to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal..."

One of the important factors in this quote is that there is a subjective element to the defence, that is, the defendant believed it was necessary to act in self-defence. So what about the "battered woman", who suffers prolonged abuse? Does she "believe" her life is in danger and therefore acts in self-defence, even though there is no "immediate" threat? Like provocation, the law has tended to require an immediate reaction of self protection to a "one-off" attack. These are the questions the High Court will soon have to answer.

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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