The leftward and other blatherings of Span (now with Snaps!)

Friday, August 20, 2004

recklessness and murder

further to my comment on Just Left's good post about the 'homosexual panic' defence (aka the 'killing a queer isn't murder, it's just manslaughter' crock imho)

The Crimes Act 1961 defines murder in s167:

Culpable homicide is murder in each of the following cases:
if the offender means to cause to the person killed any bodily
injury that is known to the offender to be likely to cause death, and is reckless
whether death ensues or not...

by this definition i would have thought Edwards had committed the necessary elements:
1. meaning to cause McNee a bodily injury
2. that he knew was likely to cause death (ie the 40 something stabs) (i think, but am not sure, that the "reasonable person" test applies here)
3. and being reckless about it (ie taking the risk that it would result in death)

so then we go to the defence to this - provocation - which reduces culpable homicide that would otherwise be murder to manslaughter, if proven.

The Crimes Act 1961 defines provocation in s169 as:

(2) Anything done or said may be provocation if -
(a) In the circumstances of the case it was sufficient to deprive a person
having the power of self-control of an ordinary person, but otherwise
having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and
thereby induced him (sic) to commit the act of homicide...

While i'll be the first to admit i don't share many of the characteristics of
the offender, i really fail to see how what McNee did (and we only have Edwards' word for that) would cause someone with the power of self-control of an ordinary person to lose it in such a manner.

I am aware, having sat on a jury, of how easy it is for us to sit in judgement out here, without all the information that the jury saw and heard, including being able to watch the demeanour and behaviour of the accused in court.

But I strongly hope the Crown appeal this - i imagine they have grounds based on a possible misdirection by the judge in regard to the provocation issue.


Greyshade said...

I agree with your comments but the reality is that a split jury (as this one obviously was) will inevitably use manslaughter as a "compromise" between conviction for murder and acquittal if given the choice. It's very hard to see how manslaughter can be justified in this case but OTOH, had it not been available, we might have got a hung jury (and maybe they should be) or even an acquittal.
Regrettably the Crown cannot appeal a verdict (only an inadequate sentence) - double jeopardy and all that.

span said...

as i pointed out in my comment to Just Left, it's been a long time since i was in a Crim Law class, so you may well be right.

however i did think the Crown could appeal on the basis of a point of law, in this case a possible misdirection by the judge that there was evidence of provocation

s169 (3) states "whether there is any evidence of provocation is a question of law", meaning it is determined by the judge.

s169 (4) goes on to say that whether that provocation was sufficient to cause, and did actually cause, the accused to kill the victim, is a question of fact, ie decided by the jury).

in which case i think (somewhat tenuously, dredging my distant memories of having to read endless jury directions from judges which had picky little misdirections in them) that the first trial would be a mistrial.

i hope i'm not wrong, but i accept that i may well be