The Prosection Must First Show That D S Actions Caused B S Death

LAWS1206

CriminalLaw and Procedure

Semester 2 2012
Q4.

The relevant conduct here took place in NSW and so the Crimes Act 1901 NSW here applies ✓. The prosecution will need to prove all elements beyond reasonable doubt here (Woolmington) and I would so advise Denise (D).✓

S 18(1)(b) provides that every other punishable homicide is manslaughter and so reference for both sections can be made to the common law (Lavender).✓

The prosection must first show that D’s actions caused B’s death.

Given that unlawful and dangerous act manslaughter (UDM) requires a positive act (Wilson), the conduct will here be characterised as the putting of the TCAP ont eh window sill in the first place as opposed to a failure to remove it (though this may be relevant to part (b)). [Does this match up to the necessary act in the Explosives Act?] That conduct was voluntary (Ryan).

Because B was the one to knock the glass over, the causation analysis needs to go beyond one of the common sense (Campbell). But it will not be difficult to so prove it because D’s action can be taken as being so connected as having substantial causal effect and contribution, which did subsist up to the happening of the event (Hallet), and although it was not the sale or immediate cause of death, D’s action created a dangerous situation and must be taken as a substantial cause of B’s death (Royall).

The courts are reluctant to finding intervening acts (Pagett) and so this element would likely be satisfied [When it’s the victim’s acts?]

UDM.

An unlawful and dangerous act must be proved beyond reasonable doubt (Larkin).

Unlawful Act

The unlawful act and its elements must first be provide (Lamb). That act is here a breach of s 6 of the Explosives Act. D’s possessing and storing of the TCAP and doing so without a licence, clearly satisfies the physical elements of s 6 ✓ .There is no fault element for that provision, meaning it is a strict or absolute liability offence, but even fi the presumption of mens rea (Sherras) [He Kaw Teh analysis?] were not rebutted, given Victor was a chemist, it is likely that she knew a licence was needed and knew she did not have one. If it were a crime of strict liability, she would likely to be found to have merely adverted to the need to have a licence and so given all these elements, it is likely that (writing unreadable) act would be found.

The act must be more than a mere breach of statutory regulatory provision and be genuinely criminal (Pullman). ✓ This is likely to be found given leaving it around and doing it often was a gross breach and in any case, the punishments for the crime (e.g. 6 months jail) ✓ moves it beyond being a mere breach to it being truly criminal. Good use of facts.

Dangerous Act

According to Wilson, the question to be here posed is as to whether ‘a reasonable man in the A’s position, performing the Act which A performed, have realised that he was exposing another or others to an appreciable risk of serious harm?’ ✓good.

Wills provides that when considering ‘an appreciable risk’, the special knowledge of the accused and the circumstances, including physical features, can be taken into account.

Here, it is likely that a reasonable man in D’s position, when putting he explosive on the window sill, would have known that he was exposing others to an appreciable risk of serious injury. D had the special knowledge, given her years of talking and using explosives with Victor that they were very harmful and could cause serious injury. ✓She was no stranger to their use or effect. Further, a reasonable person with that special knowledge (Wills) would have realised there was an appreciable risk given the very nature of households where people are often around and liable to move around✓. It would have been unlikely therefore that a reasonable person would have put the glass in such a position. This is a crime of basic intent and so no relevant intoxication can be taken into account here (s 428D).

Conclusion

Given these findings, I would advise D that the prosecution’s case is likely to be strong against her here.

Criminal Negligent Manslaughter

The same causation issues as previously discussed so here apply, though given there may be an omission here, it would likely be that the P will characterise the relevant conduct as the failure of D to remove the TCAP in the dangerous situation it caused and a potential duty coming about.

Nydam provides that this type of manslaughter will be established where the A caused death in circumstances where A owed a duty of care to the victim and there was a gross breach of the standard of care that a reasonable person with that duty would have exercised and in the circumstances where there was a high risk that death or gbh would result. ✓

The duty here:

A duty here could potentially arise by way of a special relationship at common law, potentially being analogous to a parent-child relationship (Russell). But in any case, a duty is likely established, given that a duty comes about to remove a situation of danger where oneself has created that situation (Miller). Here, she put the glass on the window and was under a duty to remove it given she knew its danger after the conversation. ✓Good.

Breach of the standard of care a reasonable person would have owed?

Yes, a reasonable person would not have left the substance there knowing that it could be so harmful (specialist knowledge: Wills). It was a gross breach (Andrews), given she did not only leave it there but did not warn B and showed a complete disregard to human life (also did not bother to get Victor to remove it=gross breach).

Circumstances of high risk of death/gbh were also present given the chemicals were of such a dangerous nature and were in a very precarious place given the happenings of a household. ✓

No intoxication of the beers can be taken into account as basic intent (s 428D(i)). Also s 428F ‘Reasonable’?

Conclusion

Given these elements I would advise D that the prosecution has a strong case and she could potentially face 25 years imprisonment subject to s 21 of the Crimes Sentencing Procedure Act.

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