Australian Criminal Law Problem Advice - Report Example

ustrаliаn Сriminаl Law Рrоblеm Аdviсе Аssignmеnt Name Course Tutor College Summary of facts Victor and Adele lived in turbulent and often volatile marriage relationship for the past 12 years, despite the fact they have two children. The wife (Adele) has been subjected to physical abuse from the husband, causing severe bruises to the shoulders, a black eye and a fractured check bone. On fateful night of Victor’s death, Victor came home from work looking tense and upset about what had happened at work, and Adele noticed early that trouble was about to erupt and took the kids to bed earlier usual after feeding. Violence broke out after Victor started his usual abuse and through a vase at Adele and missed to hit her. Adele sensed danger and took hold of Victor’s gun that he uses to hunt Kangaroos, but Victor still followed her with verbal abuses following her into the bed room. Adele tried to scare of Victor but he was coming on to her, provoking the wife to shoot him on the chest and collapsed on the floor. Adele seemed to be shocked by the incident and quickly called the emergency services for help. Unfortunately, Victor died while on the operating table due to 15 minutes caused by the traffics problem. Issues The main issue on which Adele requires advice is whether she is liability for murder or defensive homicide charges following the death of her husband in a domestic violence situation. Based on the facts Adele is guilty before the law for killing the husband, and the prosecution has pressed for murder charges as stipulated by s3 of the Crimes Act 1958 (Vic). Under this Act, the case of murder will only be considered under four categories. The first category is defined as intentional murder and involves as situation where some one carefully plans and set outs to caused grievous body harm or to kill. The second category is whereby somebody behaves in a manner in which they know the outcome of their conduct would result into death. The third category is where someone causes death through recklessness, knowing very well that the reckless behavior would cause death or grievous bodily harm. The recklessness would be tested by the state sobriety and the emotional state of the accused. The fourth category is called statutory murder; this is where the accused is believed to have been forced by the circumstances to commit offence. In the case of murder, the motive behind the killing is often taken as an important factor in the offence.1 As in the case of Adele she did not plan before hand to kill but was forced by the circumstances around her to act in self defense. This is why during the trial, jury will reduce the charges to defensive homicide as an alternative to murder. But does Adele’s case warrant defensive homicide? The persecution would argue that when she shot directly into the husband’s chest she knew that it would result into death or grievous bodily harm but still went ahead to shoot. Furthermore, Adele knew about the husband’s violent behavior but reported the matter to the authorities to seek legal assistance before it went far. The other question could be considered is whether Adele was suffering from psychological and emotional problem as a result of the long-term physical and psychological abuse. There is a recent common law case where the Victorian Supreme Court Jury is said to have found Mrs. Eileen Creamer guilty of committing defensive homicide after killing the husband on the grounds that she was being battered and forced to have sex with men in front of the husband. Mrs. Creamer is said to have stabbed and bashed the husband to death both inside and outside their, but the court reduced this conviction to defensive homicide and not guilty of murder, though she pleaded guilty of murdering the husband. Mrs. Cramer used this legislation as defense for murdering the husband. She argued that had no option but to kill the husband after many years of serial domestic violence.2 Rulings s 2 of Crimes (Homicide) Act 2005 (Victoria) article 9AD stipulates that a “person who, by his or her conduct kills another in circumstances of 9AC would constitute murder is guilty of an indictable offence (defensive homicide) and liable for level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.”3 Meanwhile, s2 of Crimes (Homicide) Act 2005 (Victoria) article 9AC states that a “ person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury”4 Under the Victorian Crime 20055 defensive homicide is not interpreted as murder but a form of self defensive if is meant to defend somebody whose life is in danger within a home situation. This legislation stipulates that defensive homicide could be allowed by the law if it carried out in the circumstances where family violence is rampart and there is enough ground to prove that the culprit acted in self defense and to prevent any harm to them. With this legislation in mind and considering the facts and issues surrounding Victor’s death through gun shot it can be assumed that Adele acted in the manner that she did because her life of danger . Application Based on the facts and issues presented in this case Adele is liable for murder after fatally shooting her husband (Victor) during a violence quarrel. Adele says that she only shot at Victor as a warning to scare him and but realized that he become too violent while charging towards her. And even after fatally shooting her husband, she was stunned by her actions and quickly asked for medical assistance. Adele may be able to argue she intent to kills the husband and only acted for self defense for purposes of s2 of Crimes (Homicide) Act 2005 (Victoria) article 9AC. This raises the statutory interpretation of this legislation which clearly provides the grounds for self defense, defensive homicide and statutory murder. Under this provision Adele is not guilty of manslaughter because she acted on her defense and to attain her liberty while in life threatening situation due to the violent behavior of her late husband Victor. There is clear evidence based on the facts provided that Adele wanted to protect through whatever means she could get, and the gun was the only available means of protecting herself and to attain her liberty. Under the Australian criminal law, self defense can be used to justify any acts of protecting one’s self in the event of danger including excessive force such as homicide, The question self defense was first brought into the Australia Common in the case of R v McKay (1957) VR 560 6whereby a farmer is alleged to have shot and fatally wounding thief, while deliberating on this case the Presiding judge Mayo ruled that the farmer was guilty of manslaughter or not matter for acting in self defense due to the circumstance where he could attacked by the thief. According to Kovac7 the High Court Judge in this case adapted reasoning in analyzing and determining the case of self defense by combining to two ingredients mainly necessity and proportionate. This shows that it was necessary for the farmer to use excessive force to defend himself in the face of danger. And same could be said about Adele case, where these two ingredients are combined. It was necessary to use excessive force through the gun to defense her from the violent husband. As a matter of fact, the defensive homicide was originally meant to protect women against who resulted to killing after a long period of family violence Adele is that kind of a woman of the defensive was meant to protect.8 However, there has been a lot controversy whether self defense could be used to a legal defense against murdering their partners. The research conducted by Bradfield 9examined how women who kill their violent male partners are treated within the Australian criminal justice system. This research is based on the examination of 76 cases of women who have killed their male partners, looked at the circumstances that contributes to women killing of their male partners in the western world and how the criminal law dealt with these circumstances. The finding from this report indicates that in most cases women have used self defense as cover to acts of murder. The courts on their part have relied on these types of defenses such as diminished responsibility, provocation, lack of requisite intent for murder, self defense, insanity and automatism to free these women even though they have been found guilty. According to Bradfield, the criminal justice tends to rely on sympathy and mercy for their situation as victims without considering the circumstances and analyzing them appropriately to determine whether they all warrant self defense and mitigatory impact of a history of violence Conclusion Based on the facts and issues raised this proceedings, jury will find Adele guilty of murdering the husband under the statutory murder statutory murder, but the motive of murder was intentional because was forced by the circumstances to act the way she did. The jury has therefore has considered the facts and issues leading to the murder squashed to defensive homicide under s 2 of Crimes (Homicide) Act 2005 (Victoria) article 9AD. Adele’s case amounts to defensive homicide, because she killed for self defense. The taken into account the issues surrounding defensive homicide in Victoria which has been on increase since 2005 to 2012 and is very much aware of the abuse of this legislations. The court will apply this law on Adele’s case because it was originally meant to protect women kill because of long term domestic violence and abuse from their partners. Since, changes were to this legislation in 2005, self defense has always been as safety net and used to exonerate women who kill their partners due to domestic violence and Adele is no exception10 BIBLIOGRAPHY Bradfield, RJ. 2002, The treatment of women who kill their violent male partners within the Australian criminal justice system. PhD thesis, University of Tasmania. Crimes (Homicide) ACT 1958-Retrieved online at http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s9ac.html. Accessed on 9th August 2013. Crimes (Homicide) Act 2005 (Victoria) - Retrieved online at http://www.austlii.edu.au/au/legis/vic/bill/cb2005150/. Accessed on 10th August 2013. Fitz-Gibbon, K & Pickering, S.2012, Homicide law reform in Victoria, Australia from provocation to defensive homicide and beyond. British journal of criminology, 52(1), 159-180. Homicide and Actus Reus - The Categories of Unlawful Homicide. Retrieved online at auslaw.wikispaces.com/Homicide. Accessed on 10th August 2013 Kovacs, D. 1977, Excessive Self Defence in Homicide Cases: Some Fundamental Problems in Australian Law. Monash UL Rev., 4, 50. Ross, N. 2011, Eileen Creamer guilty of defensive homicide over husband's death. The Herald Sun, March 3rd. Retrieved 8th August 2013. Toole, K. 2012, Self-defense and the reasonable woman: Equality before the new Victorian law. Melbourne University Law Review, 36. Tyson, D., Capper, S., & Kirkwood, D. 2010. Review of the offence of defensive homicide. Domestic Violence Resource Centre, Victoria, available online at www. dvrcv. org. au/defensive-homicide-submission. Walker, LE. 2009, The battered woman syndrome. Springer Publishing Company. Read More