Queensland Principles of Criminal Law - Essay Example

?ANSWERS The associate erred by stating that the offence committed by Brian was murder under Section 302 b). Brian must be charged for the crime of intentional murder under Section 302(1) (a). The elements of intentional murder under Section 302(1) (a) have been complied with in the case at bar as evidenced by the following attendant circumstances: (a). Brian has the intention to inflict grievous bodily harm on Jonas by punching him and pushing him to the river to drown; and (b). Malice on the part of Brian by pushing Jonas to the river, having knowledge that Jonas does not know how to swim and he will drown, thereby causing the death of Jonas. The law provides that under subsection (1) (a), it is immaterial whether the offender did not intend to hurt the particular person who is killed. In the case at bar, there is a clear showing that Brain had the intention to cause injury by physical attacking Jonas and later on pushing him to the river, which is aggravated by the fact that he had personal knowledge that Brian doesn’t know how to swim and that he will die from drowning. Therefore, Brian cannot interpose the defence that he had no intention to kill Brian because from the start, he already manifested his intention to hurt and injure the victim. In the case of R v Willmot (No 2) [1985], the Supreme Court held that the judge or jury will apply their own common sense understanding of human behavior before deriving at a conclusion with regard to the intention of the accused. In the given example, a conviction of wilful or intentional murder requires proof that the accused intended to cause the death of the victim. While intention is a subjective element, its determination requires impartiality, neutrality and devoid of any biases. Intent is derived from what the accused was thinking at the time of commission of the offence. In the absence of any direct evidence which is in the form of an admission in a full-blown trial, the intention of the accused will be decided upon based on the attendant circumstances of the time the offence committed. Intention on the part of Brian to kill Jonas is established by the fact when Brian and Darren designed a plan to beat Jonas and Marko, the two geeks who went out with their girlfriends. There is evident pre-meditation on the part of Brian and Darren because a plan was created and they carried it out until its full accomplishment. Brian and Darren are motivated by feelings of jealousy, resentment and evil motive that caused them to inflict grievous bodily harm on the Jonas and Marko. The physical injury inflicted by Brian on Jonas is a clear indication that he had the intention to cause grievous bodily harm on Jonas, which later was the cause of the death of Jonas. Thereafter, the final act of Brian of pushing him to fall off the bridge and land in the river to drown, manifests intent to kill was present on the part of Brian. Jonas informed Brian before hitting the water that he did not know how to swim. Brian saw this as an advantage as he pushed Jonas to the river so that he won’t have means to save himself because nobody was there to help him get out of the river. This final act of Brian ensured that Jonas will die by drowning. Without a doubt, malice and the intention to kill Jonas was present on the part of Brian. The evidence of guilt is strong and shown by Brian’s act of inflicting grievous bodily harm and pushing towards the river to drown. The element of malice is present when Brian pushed Jonas to the river and ensured his death because he knew that no one was there to save Jonas. In the case of Woolmington [1935] AC 462, for one to be convicted guilty beyond reasonable doubt for the crime of murder, two elements must be established: 1.) death as a result of a voluntary act of the accused; and 2.) malice on the part of the accused. Here, both of the elements are present on the part of Brian. Therefore, he should be convicted for the crime of intentional murder under Section 302(1) (a). 2. DPP should charge Darren for the crime of intentional murder for the death of Marko. Darren is liable under Section 298 or injuries causing death in consequence of subsequent treatment. The elements of crime are present in the case of Marko: (1.) Darren inflicted grievous bodily harm to Marko which caused him to seek surgical or medical treatment; and (2.) Death results either from the injury or the treatment. Therefore, under the law, Darren is deemed to have killed Marko, although the immediate cause of death was the surgical or medical treatment. However it must be proven that the treatment was reasonably proper under the circumstances, and was applied in good faith. In the case at bar, Marko’s arm is badly broken due to the fist blows inflicted to him by Darren. He undergoes surgery in order to pin his broken arm due to the injury he sustained from Darren’s physical attack on him. Hence, it was Darren who caused him to undergo the surgical treatment. The cause of death of Marko was brought about by the antibiotic which the doctor administered to him to prevent infections after such surgery. Darren cannot use the defence that he had no intention to kill Marko and pass on the blame on the doctor who treated Marko. Under the law, it is immaterial whether Darren had the intention to kill Marko. The mere fact that Marko was brought to the hospital in order to seek medical treatment to cure the injuries he sustained from Darren’s fist blow is a manifestation that Darren was the primary cause of Marko’s broken arm. If not for the physical attack of Darren on Marko, he would not have undergone surgery that required antibiotic to prevent infections after the surgery. The doctor who treated Marko cannot be held liable for the death of Marko because he acted in good faith when he operated on the patient in order to cure his broken arm. In surgeries, it is a requirement to apply antibiotics in order to avoid infections. Here, the doctor had no knowledge that Marko was allergic to the antibiotic that he administered on him during the surgery. The only intention of the doctor was to cure the patient and save his life. Darren should be the one to be made accountable for Marko’s death. Had it not for the physical attack of Darren on Marko, he will not seek medical treatment which required surgery for his arm. Hence, the operating and substantial cause of the death of Marko was due the act of Brian of throwing fist blows on Marko. If not for act committed by Darren, Marko would not have needed medical treatment and his death would not have occurred. Hence, Brian will still be liable for the death of Marko. In the case of R V Smith [1959], the High Court held that the defendant’s act would be regarded as the cause in law if it was shown that it was the operating and substantial cause of the victim’s death. In the case at bar, the medical treatment is considered was an intervening event after the act was committed by Brian, which resulted to the subsequent death of Marko. Hence, the medical treatment is an intervening event which is in connection with the original act of Brian of inflicting original injury on the victim. While in the case of R V. Malcherek [1981], the defendant was convicted of murder and appealed on the ground that the doctors had broken the chain of causation between the defendant’s attack and the death of the victim by deliberately switching off the life machine support. The High Court held that the operating and substantial cause of the victim’s death of the victim had been the original wounds inflicted by the defendant. Here, the timely medical treatment administered by the doctor included the application of antibiotic on the victim, and later turned out that the victim was allergic to that drug that eventually caused his death. The victim would not have been placed in that situation if not for the act of Darren of physical attacking Marko and inflicting an injury. Therefore, the effect of the antibiotic to which the victim was allergic to, was merely used to prevent the infections after surgery. It is immaterial whether or not Brian failed to inform the doctor that he was allergic to the antibiotic. The original injury inflicted by Brian on the victim was the “operating and substantial cause” of the death of the victim. Therefore, the DPP should completely disregard the assertion of Darren that it was the error by hospital that killed Marko and should charge Brian for the crime of intentional murder for the death of Marko. References: R V Smith [1959] 2 QB 35 R v Willmot (No 2) [1985] R V. Malcherek [1981] 73 Cr App R 173 Woolmington [1935] AC 462 Read More