Legal Problem Solving: Murder - Case Study Example

Issue identification This case involves the actions that were taken by Kevin which led to the death of Drago one of his college mate. The paper discusses the liability of Kevin for Drago’s death. The issue in this case is whether it was Kevin’s act that caused Drago’s death. In addition, other issues raised by Drago’s death include provocation and self-defence. Relevant laws In NSW Australia, the establishment of murder is when there is an act committed by the accused, which lead to the deceased’s death during the time of the act, where the action of the accused was with an intention to cause grievous harm on the body, or to kill.1 Under the state law of New South Wales, the maximum penalty as a result of murder is imprisonment for life with a period that is standard non-parole of 20years, or a period of 25 years of murder of a minor who is below the age of eighteen years. In order for the accused to be guilty of murder under the crimes act of the New South Wales, the intention to cause a grievous harm of the body is just enough to secure a murder conviction. In Ryan, Crown alleged that the accused was found guilty of murder. In this case, as the accused was confronted by the deceased, the gun of the accused discharged which led to the killing of the deceased. The argument of the accused was that the gun discharged due to involuntary response to the victim’s sudden movements.2 In NSW law defence of provocation; if there is prove on provocation and the accused would have convicted murder, the jury is directed to find the defendant guilty of manslaughter but not murder. In a case on self defence, Zecevic v DPP (vic), it was decided that the test for defence which is relevant is so: if the one accused believed upon reasonable doubts before committing the act that what he did was necessary thing to do for self defence. 3There are no any requirements for the force to be reasonable or for the force to be subjected to a test for objectivity.4 One of the factors that may be considered by the jury is the appropriateness of the force to the threat that was faced in making the decisions whether the accused had a belief that was necessary or whether the belief had a reasonable ground.5 Kevin could also use duress as a possible defence. Duress usually excuses the accused criminal conduct where he was forced to take an action due to lack of opportunity to escape.6 Kevin may also use provocation as a self defence alternative. The requirement in provocation is the part of accused to lose self control which has been induced by the deceased conduct.7 This occurs in circumstances where someone could be provoked so much to a condition that one would have developed an intention to cause grievous harm on the body or intention to kill.8 Analysis The autopsy report shows that Drago was killed as a result of the impact he encountered with the vehicle. If Kevin is to be liable of the death of Drago, then there must be explanation of Kevin’s actions that resulted to the death of Drago. Whether the actions of Kevin led to Drago’s death is a fact that is supposed to be determined by jury though the use of common sense.9 The fact that the report from the hospital showed the result of death as the vehicle impact, it is not sufficient enough to break the link of the actions of Kevin to the death of Drago based on the fact that during the time of death, the cause of the accident was due to repeated stabbing that Drago received from Kevin leading to escaping towards the road.10 It is clear that Drago would not have died if Kevin would not have stabbed him. This shows that Kevin’s action resulted to the death of Drago.11 Although the actions of Kevin led to the death of Drago, Kevin will be liable for Drago’s murder only if he had relevant mens rea during the time of acting. There is no sign suggesting that Kevin had the actual intentions of killing Drago or the intention to cause grievous harm on the body. Reckless indifference to the life of human requires that Kevin recognized that the consequences of his actions could probably lead to the death of another person.12 From the facts, there is nothing which suggests that the accused realised that he would kill Drago during the course of his visit to the club. Identifies the second element and relevant legal principles that are applied to the facts of the problem question. Note how statements in the text are supported by reference to primary sources in the footnotes without actually mentioning the case name in the text of the essay. The last sentence draws a fairly assertive ('there is little doubt that') conclusion on the issue of causation in this problem question. Self defence The previous stories of violence on Kevin and the threats he had been receiving throughout her school life from Drago would give Kevin a belief that based on the harsh treatment from Drago, Kevin was facing risks a serious harm on the body or death risk from Drago. From the previous threats, Kevin may be based on the grounds that he could have believed in a reasonable manner that in order to save his life from Drago, the response that was required was stabbing Drago. The fact that Kevin took out the pocket knife and stabbed Drago cannot be conclusive. If Kevin believed that self defence was necessary by killing Drago, then it was reasonable for Kevin to ensure he stabbed Drago. Duress as defence There is evidence that may be used to support defence using duress. Drago has been a threat to Kevin before the incidence and also during this incidence. If duress becomes successful as defence, then it means that it is not in denial that Kevin committed the act but it is excusing Kevin’s criminal conduct. Duress is a form of avoidance and confession where the accused admits the crime elements, but the accused seeks to be excused due to the duress.13 This argues that Kevin did commit the act but, if no one died he could be excused on basis of reasons of duress. Identifies the complex legal issue that shows application of defence isn’t clear – identify the argument against. Identifies the argument for application. Provocation The evidence which can be identified as only suggesting the loss of control is the way Kevin took out the knife from the pocket. Where there is loss of control, you have to take consideration whether a person of the same character as Kevin or otherwise a person with minimum self control standards expected in the society could have received provocations of such requisite degree.14 The death of Drago resulted from physical and psychological threats to Kevin, threats to his life, and violence towards Kevin which forced Kevin to react. One of the matters for a jury is how a person considered to be ordinary could have reacted but there could be available evidence for basing an argument supporting a manslaughter verdict as a result of provocation. Conclusion In conclusion, Kevin will be guilty of Drago,s murder. But Kevin may be acquitted based on the grounds that he was acting in self- defence. He may also be acquitted of murder but on the grounds of provocation or be convicted of manslaughter. Identifies principles of the first issue. Applies these principles to the facts of the problem question and reaches a conclusion in the last sentence. References Crimes Act 1900 (NSW) s 18. Crimes Act 1900 (NSW) s 23(1). Crimes Act 1900 (NSW) s 23(2) (a). Crimes Act 1900 (NSW) s 23(2) (b). R v Crabbe (1985) 156 CLR 464, 9. R v Howe [1987] AC 417 and LBC, Laws of Australia, vol 9 (at 30 September 2000) 9.3 Defences and Responsibility, chapter 2 – Duress, [5]. R v Malcherek; R v Steel, ibid 154 Royal, (1991) 100 ALR 669, ibid 146 per McHugh J. Royall  (1991) 100 ALR 669 cited in L Waller and C R Williams, Brett, Waller and Williams Criminal Law Text and Cases, 8th Ed 1997, pp. 142, 145 per McHugh J. Ryan (1967) 121 CLR 205. Don’t waste words in your essay introduction restating the facts at any length. Just identify the areas that you intend to explore. The major legal issues (charges) are stated in the first sentence. These stated legal issues then become the two major (heading level 1) sections of your essay. Stingel (1990) 171 CLR 312. Waller, L. & Williams, C. R., Criminal Law,3rd Ed, 1993, p. 397. Zecevic v DPP (vic) (1987) 25 A Crim R 163. Zecevic v DPP (vic) (1987), 174 per Wilson, Dawson and Toohey JJ. Read More