Reactionary law is
usually rushed and rushed law is almost inevitably bad law.
Last year I wrote about the serious flaws in both the construction and practical
implementation of Western Australia’s
“one punch death” law. Its biggest problem is that by removing the “reasonably
foreseeable” test, this law does not distinguish the wide range of culpability
which exists in practice. This leads to injustice at both ends of the spectrum
of severity as police apply the law in blanket fashion.
People who should be
charged with manslaughter will instead be charged with assault occasioning
death because of the much greater ease in securing a conviction. People involved
in fair fights or possibly even defending themselves will be charged with the
same offence. The police’s attitude will be to charge everyone and let the
courts sort it out.
Now the NSW government wants to bring in a one punch death law, but with harsher
penalties available. The tipping point was the light sentence handed down to Kieran Loveridge for the king hit manslaughter of teenager, Thomas Kelly.
My main point in this
post is that we don’t need a new law, particularly one which will deal with
circumstances which are already covered by existing law. What is required is
proper clarification of the definition of manslaughter, including self defence
and provocation, together with the ability to add circumstances of aggravation
to the charge. The latter could deal with king hits, stomping, attacking a
defenceless person and other acts which could reasonably be foreseen to result
in grievous harm and possibly death.
In NSW, S18 of the Crimes Act deals with murder and
manslaughter:
(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.
The problem with this current
statute is: what do we mean by “punishable homicide”? This is what needs to be
made clear. However, “one punch death” laws will not achieve this. In fact, having
another law on the statute which largely overlaps and effectively competes with
manslaughter will most likely cause confusion and injustice.
Not all homicides are punishable.
Some are purely accidental. Some are in self defence.
Even amongst the set of all
punishable homicides, there is a broad range of culpability, not taken
into account by “one punch death” laws, as these typically remove the test of
death or grievous injury being reasonably foreseeable.
The proposed law will not alter the
treatment of situations where a person causes the death of another, but purely
through accident or misadventure. These are not considered manslaughter now and
would not be covered by a one punch death law, since no unlawful assault has
occurred.
However, the proposed law may
impinge on the right to self defence. Suppose a person is punched and punches
their attacker to prevent being further assaulted. Suppose that the original
attacker then falls, hits their head and dies. Most people would agree that
this is not a punishable homicide.
But what if the police decide to lay
an assault occasioning death charge on the grounds both parties were involved
in a fight? It could easily happen. Even if the defendant successfully defends
the charge by proving self defence (hence there was no unlawful assault in the
first place), how much emotional and financial stress will they have suffered?
What if a conviction carried a mandatory jail sentence, as is being proposed by
some dim witted, reactionary MPs?
Even without an assault occasioning
death law, the police could still lay a charge of manslaughter, however the
large body of case law renders a manslaughter prosecution less likely.
It is crucially important that what
constitutes self defence is made clear, including the right not to have to
first retreat to establish it (which is dangerous). This is as much to prevent
the police and DPP harassing innocent people with unfair charges in the first
place as it is to prevent wrongful convictions.
Just as important is the
clarification of mitigating circumstances, such as provocation. This is
rendered even more so by the proposed law’s failure to countenance any
mitigation, which is one of its chief injustices.
Suppose a person responded to a
continued stream of harassment by snapping and punching their tormentor, who
then fell, hit their head and died. Suppose the puncher had been subjected to a
lengthy tirade of racial or other bigoted abuse. Now technically, they have
committed an assault, which is strictly not self defence because they had not
been physically attacked, so there is the distinct possibility the police would
lay a charge of unlawful assault occasioning death. Perhaps the defendant could
argue the assault was not unlawful because they held a reasonable belief that
they were in imminent danger of being attacked and perhaps a jury would accept
such a defence. But why should it have to come to this?
Under the current manslaughter law, such
a situation could still lead to manslaughter charges if the police held some
bias against the puncher. But with a decent lawyer, most juries would find them
not guilty. However an unlawful assault occasioning death may be much harder to
defend, particularly if the dead person’s friends lied in court. If there
existed mandatory sentencing, someone would have been sent to jail for reacting
to harassment and abuse in a way many of us would.
The unlawful assault occasioning death law is being
proposed largely in reaction to recent “king hit” deaths. Let’s be clear what a king
hit actually is: a punch when the victim is not looking and has no chance to
defend themselves. It is not when someone shapes up to you and you hit them
first and knock them down. That is self defence.
The way to deal with king hits or
other gutless acts is to allow the addition of circumstances of aggravation to
a manslaughter charge, which can then be taken into account during sentencing.
This provides all the seriousness required to deal with such offences and
sufficient scope for heavy sentences.
My main point here is that if:
1.
What constitutes self defence is made clear,
2.
Mitigating factors such as provocation are clearly set out,
3.
The “reasonably foreseeable” test is kept and misadventure
better defined,
4.
Police and prosecutors are given the ability to add
circumstances of aggravation,
Then the scope of NSW’s existing S18
b) manslaughter offence (and similar in other jurisdictions) is sufficient to
deal with the complete range of deaths resulting from assaults. No blanket
“assault occasioning death” law is required. We can concentrate on justice, as
opposed to appeasement of the noisy, fearful and angry.
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