just a fun criminal law question (1 Viewer)

[mr EaZy]

For any one out there who wants to have a go at a typical crim question, ive got one for u!!

The Facts
Mary is Italian and a devout Catholic. She married Frank when she was very young. Their first child was born when Mary was only 17 but died because her husband fell on the child when he came home one night very drunk. Since then Frank was very abusive and violent, often beating Mary as well as their second child. This was often a result of his drunkenness. This violence had been going on for 10 years. On Monday night Frank came home drunk and beat Mary. He also threatened her and their child with more of the same. On Tuesday night he again came home drunk. He said nothing to Mary and went to the bedroom where he fell asleep. One hour later Mary entered the bedroom and stabbed Frank three times in the chest. After another hour, Mary went back to the bedroom and discovered that Frank was still alive. She then called an ambulance.

Frank is rushed to hospital in an ambulance accompanied by Bob, a trainee paramedic. Along the way, Frank’s heart stopped but Bob, thinking that Frank was going to die anyway, did nothing and Frank was pronounced dead on arrival at the hospital.

Consider the criminal liability of both Mary and Bob for Frank’s death.


enjoy!

 

[Frigid]

later, later... when i've revised my homicide

 

[melsc]

I am probably wrong but its good practice for the crime part of the HSC paper
Mary - battered womens syndrome...is it a complete defence? I think it is
Bob - the mens rea would be negligence wouldnt it so it be mitigated to manslaughter...
*waits for a far superior and correct answer*

 

[MiuMiu]

hehe yeah that is a very legal studies way to answer it--theres nothing wrong with that, it sounds like you love legal as much as I did!

Battered women's syndrome isn't actually a defence, its been considered by the common law but theres nothing definitive.

Its 10.30pm on a Sunday nite and its been awhile since I did crim (well ok like 3 months but thats a long time for my poor lil memory!), but I'll have a whack at the bits I remember...(in no particular order)

Mary is liable for the murder of Frank, even though she called the ambulance...here we apply the 'eggshell skull' rule, in that you take the victim as you find them, and even if medical help fails it doesn't matter because it comes down to causation. Let me go back and do this logically:

Mary:
Mens rea--obviously there
Actus reus--well, she did stab him!
Causation--Mary's act directly caused the death of Frank...no presence of any novus actus interviens (new interviening acts)

As far as defences go, Im not particularly well read on this topic, but shes got two possibilities, either provocation or self defence.

Self defence is unlikely to succeed because she did not have an immediate fear for the safety of herself or others (please do not expect me to pull out authority for this!)

Provocation is possible (hehe yeah yeah I don't have anything on this, all I know is that its a possiblity), but even still will only reduce murder to manslaughter...

Bob

His liability is determined on what someone of his training would have been expected to do in the situation--objective standard of care if I am correct (or have I got objective and subjective around the wrong way?). If he hasn't got the training I don't think he is liable...

This is pitiful guys, please don't judge!

 

[Frigid]

that's very pitiful Ms 12 (NO REFERENCE TO CASE LAW!!!).. okok i won't judge coz i can't do better... but i'll keep this question in mind and answer it in three weeks (midsem break time) i promise ^^

 

[melsc]

causation R v Blaue - thats the only causation case I can think of

 

[MiuMiu]

that's very pitiful Ms 12 (NO REFERENCE TO CASE LAW!!!).. okok i won't judge coz i can't do better... but i'll keep this question in mind and answer it in three weeks (midsem break time) i promise ^^

Haha if I had my textbook in front of my Id have plenty of case law, but since Im not being marked Im not going to pull that textbook out!

 

[MaryJane]

I'm really too tired to contribute at all, but I'm going to anyway (if only briefly and most likely inarticulately)

Causation would be linked to Smith: the test for criminal causation. Who killed Frank? Technically it was Bob, but mary put Frank in that position. It comes down to what was the "operating cause of death"? If the medics stabalised Frank, it would be Bob's fault, but if they didnt, Mary would be criminally liable.

BWS is not a complete defence, its not a defence in its self in the slightest, but can be a factor to be considered. Usually women raise it in regards to self-defence.

Totally off the top of my head from last semester. We had a similar final exam question, and I did my assessment on domestic violence in the CJS, so it all fits in quite nicely!

 

[ManlyChief]

hehe yeah that is a very legal studies way to answer it--theres nothing wrong with that, it sounds like you love legal as much as I did!

Battered women's syndrome isn't actually a defence, its been considered by the common law but theres nothing definitive.

Its 10.30pm on a Sunday nite and its been awhile since I did crim (well ok like 3 months but thats a long time for my poor lil memory!), but I'll have a whack at the bits I remember...(in no particular order)

Mary is liable for the murder of Frank, even though she called the ambulance...here we apply the 'eggshell skull' rule, in that you take the victim as you find them, and even if medical help fails it doesn't matter because it comes down to causation. Let me go back and do this logically:

Mary:
Mens rea--obviously there
Actus reus--well, she did stab him!
Causation--Mary's act directly caused the death of Frank...no presence of any novus actus interviens (new interviening acts)

As far as defences go, Im not particularly well read on this topic, but shes got two possibilities, either provocation or self defence.

Self defence is unlikely to succeed because she did not have an immediate fear for the safety of herself or others (please do not expect me to pull out authority for this!)

Provocation is possible (hehe yeah yeah I don't have anything on this, all I know is that its a possiblity), but even still will only reduce murder to manslaughter...

Bob

His liability is determined on what someone of his training would have been expected to do in the situation--objective standard of care if I am correct (or have I got objective and subjective around the wrong way?). If he hasn't got the training I don't think he is liable...

This is pitiful guys, please don't judge!

MY TWO 2c:

The problem's facts as stated are quite interesting and draw upon areas of the law of causation that are still rather up in the air, as it were. Jordan (1956) 40 Cr App R 152 is one of the rare example of incompetent medical treatment breaking the chain of causation (the case similarly involved stab-wounds).

Yet in Jordan, the treatment lead to death via the victim's reaction to certain incorrectly supplied medicines, which is slightly different form the case at hand.

A slightly closer case was that of Malcharek and Steel [1981] 2 All ER 422 in which, again after treatment for stab-wounds, doctors determined that the victim was "dead" (or in a vegatative state from which he would not recover - I don't remeber which) and withdrew treatments that were sustaining bodily finctions. The English Court of Appeal did not consider that an intervening act.

In the present case, the paramedic's assessment of the victim as "dead" (however [in]correct that may have been) and his decision not to apply treatment sustaining bodily functions appears, upon my, albeit curosry, glance to reflect the Malcharek facts. Were I representing the paramedic, I would argue that the English Court of Appeal's decision should be applied as persuasive authority on the point of law (and the Court decided that this point was a point of law for the bench not a question of fact for the jury).

I should be writing a legal ethics essay now, so I can't comment on the law relating to the liability of the other actors in this sorry drama. Have fun though.

That concludes my two cents.

 

[MiuMiu]

The causation case Im actually thinking of is that one where the guy stabbed that morman girl, and because of her beliefs she refused a blood transfusion. It was found by the court that the guy still directly caused the death, because if he hadn't stabbed her she wouldn't have needed the blood transfusion.

If Mary hadn't stabbed Frank, he wouldn't have needed medical attention (which failed). Therefore the chain of causation isn't broken.

No matter how you look at it, Bob didn't cause Frank's death. He didn't do anything. He may be liable for medical negligence but I don't think its a criminal issue.

 

[melsc]

The causation case Im actually thinking of is that one where the guy stabbed that morman girl, and because of her beliefs she refused a blood transfusion. It was found by the court that the guy still directly caused the death, because if he hadn't stabbed her she wouldn't have needed the blood transfusion.

If Mary hadn't stabbed Frank, he wouldn't have needed medical attention (which failed). Therefore the chain of causation isn't broken.

No matter how you look at it, Bob didn't cause Frank's death. He didn't do anything. He may be liable for medical negligence but I don't think its a criminal issue.

Yeh thats R V Blaue, with that reasoning that makes sense, still could it not be argued that he may have lived had he had proper medical attention???

 

[MiuMiu]

It doesn't matter though--yes, had he recieved proper medical attention he may have been saved from dying, but had Mary not stabbed him he wouldn't be dying at all. Nothing has broken the chain.

It would be different if Frank had been admitted to hospital and was saved (even though Mary would have been up for attempted murder which carries the same sentence as murder), but then was given the wrong medicine and died, because there is a new interviening act (the administration of the wrong medicine).

 

[melsc]

It doesn't matter though--yes, had he recieved proper medical attention he may have been saved from dying, but had Mary not stabbed him he wouldn't be dying at all. Nothing has broken the chain.

It would be different if Frank had been admitted to hospital and was saved (even though Mary would have been up for attempted murder which carries the same sentence as murder), but then was given the wrong medicine and died, because there is a new interviening act (the administration of the wrong medicine).

Ohhhhh .

 

[MiuMiu]

Hehe im fairly sure thats the answer, but if I wrote that in an exam Id fail dismally--no authority = no argument.

I suppose you've been told the trick Melsc about making up cases if you can't think of them during your exam? It got me a 97

 

[melsc]

yes, as long as you are careful, some girls in my class tried to make up a case, which was a simple drink driving case *do death* that was held in the Supreme Court besides the fact my legal teacher was a lawyer...

 

[MiuMiu]

Haha I never would have done it in class, only in the HSC exam where the markers are only looking for you to back up your answer and don't have the time or resources to check if you are right--they have to give you the benefit of the doubt!

And btw it was our teacher that taught us to make them up hehe.

 

[melsc]

some people I know told me they underlined words to make it look like LCMD
my other teacher told us to make them up, this one told us not to, but dont worry thats my plan b...if u dont know...fake it

 

[Omnidragon]

There are limited facts. But for me, the two issues are causation and provocation.

Causation

There's no facts to suggest that the paramedic was wrong in exercising his medical judgment.

Even if immediate treatment were to make a difference, I would still find it difficult to say that causation is severed. The paramedic wasn't negligent nor did he in any way actively accelerated Frank's death. This is simply a case of loss opportunity to receive medical treatment, even if the paramedic's treatment was wrong.

Provoction

The issue of provocation - well there was nothing highly provocative about what Frank did. He didn't beat her. The facts do not suggest that she was under the impression that her life was at risk. The cooling off period, though not a conclusive factor, is also relevant.

For me, I do not find that Frank's usual conduct is so provocative that an ordinary person would be provoked into killing. There was nothing to suggest that the accused, or in fact, any ordinary person would have been under the impression that their life or their child's life was at any significant risk so as to merit kiling.

Given such a view, I find it difficult to accept that the accused can be provoked into killing especially when the deceased had done nothing. I find that the provocation fails on the ordinary standard element espoused my Masciantonio.

Lastly, I doubt the accused was even provoked into killing. Given the limited facts, I don't have much to say in terms of justification for such a conclusion.

 

[mr EaZy]

u guys arent going into the finer details of the case

Bob is a trainee paramedic- what relationship does a trainee have with a patient?
what standard of care do we place on him?

the case of standards and how standards arise was dealt with in the case of TAKTAK

i dont think cooling off period matters anymore- i think it did matter in stingel and the case where the drives his car in pursuit of his runaway wife and her lover on a pushbike. but im not sure if it matters still

im doing a court report at the moment so im not going to dwindle - BWS is a partial defence in Britiain but i dont think it amounts to anything here- its just that it gets consideration- the attack is put in context with past experience.

you would still raise the issue of provocation - there was a case of chaay where there was no triggering incident but past incidents caused the attack- i only heard about it last thursday and havent read it yet- ive only read one case - part of it only

 

[mr EaZy]

i read a book which says that "its almost impossible to be 100% sure that someone had a particular intention"

the notion of "we intend the things that we do" is rejected by the courts even though one trial judge used it - it was rejected by the HC. cant rem the case.

so how do we ascertain the mens rea under s18(1)(a) of the crimes ACT 1900 (NSW)??


18 Murder and manslaughter defined

reference:

-------------------------------------------------
(1)
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(2)
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s18.html