Crime Law: Difference with Assault, Difference from Manslaughter, and Removing Ambiguity - Assignment Example

Name: Instructor: Course: Date: Safe night out legislation was introduced by Queensland premier to the Queensland parliament on the 6th of June 2014. According to his introduction speech, the bill formed part of the strategy by the government to ensure that there would be a very comprehensive strategy of ensuring the safety of the residents of Queensland away from the violence inflicted by those who imbibe drugs and alcohol. A new legislation was introduced which is called the unlawful striking causing death into the criminal code of Queensland. The new section will be called section 302A and has the harshest sentence of a life in prison with parole only becoming eligible only after serving 80% of the sentence or at least 15 years. In terms of severity of the sentence, this new sentence ranked only second to a murder conviction. Q1. Difference with assault The new offence applied to persons who unlawfully struck another person to neck or head resulting in the death of the one who had been struck. The law has notably excluded the wording of provocation as a defense which now does not exist in the statutes of Victoria. Specifically the meaning of the word striking is inserted to the section 302A (7). This has been expounded as; “Strike, a person, means directly apply force to the person by punching or kicking, or by otherwise hitting using any part of the body, with or without the use of a dangerous or offensive weapon or instrument.” It is intentionally worded to avoid any correlation with the crime of assault that carries a different sentence. The parliamentary committee of legal affairs which is also charged with community safety delivered its report to the house as mandated by parliament on the 18th of august 2014 and forwarded a recommendation that the motion be passed as proposed. This was done on September 2014. They had several recommendation on clauses touching on the bill but specifically touching on unlawful striking, they noted that the alcohol industry had noted and supported the measures but the legal bodies had their misgivings about the applicability of the mechanisms of establishing what had been a cowardly punch noting that the eventuality of the punch would be death and the deceased would not be in a position to stand as a witness for the process not to take the manslaughter dimension1 Q2. Difference from manslaughter The primary goal of the legislation was to stem the rise of violence related deaths that had been happening to the revelers from fights but which eventually almost always ended in lighter sentences when taken to court as manslaughter. Previously, the charge for the coward punch ended in court as a charge carrying manslaughter related charges. In the absence of overt proof that the killer had the intention of killing the victim, a murder conviction is not easy to secure. The section (1) (b) gave more leeway to the suspect to escape the murder charge if the circumstances leading to the death were unforeseen or was completely unintended. If an ordinary person would not foresee that such an act would bring calamity, the murder conviction would not stand. The new law was conceived to plug those loopholes that people who had murdered used to circumvent justice while ensuring that the society is protected by such cowardly acts that end in calamity. The new law does not require that the offender to prove the fact that death was caused by unintended action and that it did not come about by a circumstance that would have been foreseen. The difference with manslaughter charge is that in manslaughter charge the culprits could evade harsher sentence by intoning that the act was not intended was not planned for and that they probably acted in self defense2. Under the current law of unlawful striking, all those reasons do not come into play for as long as the person was not authorized to use force, had not fore-planned and forearmed himself to commit the felony in which case it would fall under assault and that the death did not happen as a consequence of any form of striking; whether in self defense or not. The test for assessing whether the act was a dangerous according to the high court definition has always been objective and the boundary of determining whether the culprits were to be charged with. The charge therefore had numerous challenges as the person committing the act must have been decreed to have intentionally and deliberately committed an act where the result would definitely be serious injury for a charge to be sustained. Conversely for such a charge to be sustained in a court of law the burden of proof was with the prosecutors to prove that the end result of the act by an accused would inherently result to death or else the accused would get an acquittal on the grounds of the act having been an accident. The one punch incident therefore that ultimately caused death had all the loopholes to escape conviction in a court of law and it is that loophole that the act seeks to plug. The reason is not that manslaughter was viewed as too light for trying one punch incidents that resulted in death but the fact that manslaughter was difficult to prove in such a situation. The charge of manslaughter ranges from very serious and vicious attacks on another human being for as long as it can be proven that there was no intent to do so to very mild confrontation like the one that would result in a one punch incident3. The attacker of the one punch incident would not be taken as a serious or a vicious aggressor by the courts and as such they served light sentences in spite of the fact that they dispatched a human life despite the fact that there was no intent as s314A demands4. The community was of the feeling that too much had been taken from the accused in litigation and the interests of the victims almost always took a beating. Far too many times the panels found that those accused of such acts were guilty of negligent manslaughter and the moral and legal culpability factored in to give them light sentences. There needed to be a deterrence and coming up with this law was supposed to address that. A number of new features on the law are; The term strike has been used to define the act of directly applying force to another person by throwing punches, by kicking, by hitting using any part of the body whether with or without the use of a weapon Q3. Removing ambiguity Section 23(1) (b) of criminal code which requires proof on intention or the element of foreseeing the consequences have been expressly excluded in the new section. The same can be said of the premise that the act was committed in self defense. It therefore implies that the community will be safeguarded from acts of violence leading to any manner of fatality as engaging in the act which would eventually compel someone to hit the other directly impacts on the one who hits if a fatality were to occur. In section 314A there is express stating that assault does not constitute unlawful striking which causes death. The result therefore is that defense provocation under the s268 and s269 would not apply in the new offence5. If the act is done in a socially acceptable function like in contact sports, the new law would not apply. This is due to the fact that the contact sports are inherently dangerous and accidents that may happen in them, though not welcome are socially accepted. With the striking out the defense of saying that one had been provoked and acted as a result of the provocation as stated in s268 and s269 comes the need to remove the aspect of defense from the statutes. The law had required that required that a defense of a death having occurred from an accident to be raised by the accused and it was upon the prosecutor to prove beyond reasonable doubt that the events as narrated by the accused had the element of predictability that such a thing would probably happen and secure a conviction. By proving that any reasonable person would have foreseen the eventuality of the deed, a conviction was sought. The new law on unlawful striking causing death removes the possibility of the accused from relying on the defense premise to prove non culpability. The new dispensation removes the possibility of the accused arguing in his defense that “although the act of striking the person was willful, the intention was not to kill; death was an accident.” When the circumstances surrounding exchange of blows like in the case of Carroll v Lergenser (1991) 2 Qd R 206 involves having consented with the victim beforehand, the onus of proving culpability does not become easy. This is however does not imply that individuals are allowed to fight each other to any degree of harm. It was the duty of the jury to decide the degree of consent given to engage in such an activity and when grievous harm was done, to prove culpability on the offender6. The degree and consent level is left to the jury to decide and act on it for determination of any matter that needs their determination. The overriding position of jury over time has been that while some form of consent may be given by an individual when challenging another to a fight, the exact extent of this consent may not be such straightforward. More often than not, participants in a fight consent to doing it but within some limits; it is when those limits are breached that the idea of consent does not appeal to the aggressor any more.7 It would be inconceivable that a person would allow another to murder when the end result is known beforehand. This law however bypasses all that; as long as the end result is that a person has lost life due to exchange of punches, kicks or blows there will be conviction as a result of unlawful striking causing death and consent will not be allowed as the basis of defense. Works Cited Quilter(2014)’the Thomas Kelly case: why one punch law is not the answer. Criminal law journal, 38(1), p.36 Colvin, Eric and Suzie Linden-Laufer, Criminal Law In Queensland And Western Australia (Butterworths, 1994) J Stubbs, Submission FV 186, 25 June 2010. McDonald [2008] EWCA Crim 1499 Shanahan, M. J, Paul E Smith and S Ryan, Carter's Criminal Law Of Queensland (LexisNexis Butterworths, 2006) Read More