We Need To Clarify Manslaughter, Not Enact Unjust One Punch Death Laws

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.

Transurban: Why Not Try Lowering The Toll On The Cross City Tunnel?

Transurban has paid $475 million for Royal Bank of Scotland’s $600 million of senior debt in the Cross City Tunnel. There is a clause which entitles RBS to a further $27.5M if traffic volumes markedly increase, but I think that’s unlikely to be exercised.

In September, the CCT went into receivership for the second time. RBS selling the entirety of the only secured debt at a 20% discount says there is no residual equity value. Thus, Transurban has decided to buy the Cross City Tunnel for about $475M, since their plan is clearly to convert the debt to if not 100% equity, then at least close to it.

Can they make this pay a worthwhile return?

Current estimates for daily traffic flows in the CCT are 36,000. A report with a May 2006 figure shows 34,000, so there hasn't been much improvement over the past 7 years. 36,000 per day at a toll price of $4.95 gives gross revenue of $65M p.a. Some of the 36,000 journeys will be into the harbour tunnel at $2.33 and some will be large vehicles at $9.89. One might balance the other. Then again, it might not. Let’s assume current gross revenue of $60 - 65M p.a.

What would be the CCT’s operating expenses?

More than you’d think if they called in the receivers over a $64M tax debt with a cash flow positive asset. It can’t have been all that positive. Certainly less than $5M p.a. if they couldn’t borrow to pay a one-off tax bill. The linked AFR article above says that RBC Capital estimates EBITDA in the range $25 - 35M, implying operating costs of about $30M p.a. The interest on the $600M is then probably around $35M p.a., although bills + 300 seems a little cheap for the risk of the debt.

Allowing for other expenses, that’s a return on equity of at most 7% for Transurban (assuming they convert the debt).

OK, so where to from there? How could Transurban get to an ROE of 10+%? Increase traffic flows by 40%?

Not with the rip off toll. Traffic flows haven’t increased in 8 years. Why would they start now? It’s the toll which is the problem. Too many people are willing to drive through the city to avoid paying $5. I do, unless the traffic is clearly heavy. I'll even drive down William & Riley Sts to the Harbour Tunnel to avoid the $2.33 toll most times.

Do the arithmetic: Even if you spend an extra 10 minutes in traffic to drive down William, Park & Druitt Sts and onto the Western Distributor, that’s $5 for 10 min work = $30 per hour after tax. Most people don’t earn that in their jobs, so it makes sense to avoid the toll, since the extra travel time is usually closer to 5 min than 10.

For me, avoiding the toll is as much about principle as a rational economic choice. Every dollar I save is a dollar these shifty pricks won't get. Had they priced the toll at a level I consider fair, I'd use their road.

That’s what you’re up against, Transurban. People hate feeling ripped off and many will spend time and effort avoiding it.

Here’s a thought: Why not do some proper behavioural economic research and cash flow modelling, not the dodgy figures consultants are paid to manufacture to meet management’s expectations?

Drivers want to use the tunnel, but not at any price. How about lowering the toll for a while, to say, $3, the same as the Harbour Bridge and Tunnel? Make the Harbour Tunnel exit $2. Do some serious market research, then if it’s positive, advertise the new tolls properly and see what happens.

Traffic flows would need to increase to 60,000 per day to achieve the same revenue, so it’s a risky experiment if it fails, because putting the toll back up to $5 could leave the CCT with less traffic than it had originally. Or you could be more conservative and set the toll at $3.50 and aim for 50,000 per day. The worst that could happen is a 3 month trial which fails to significantly increase traffic numbers and costs about $5M in lost revenue.

Is that worth the gamble? Or is 7% ROE a good enough return for risk for your shareholders?

Kieran Loveridge's Sentence Is Too Light, But It Was Never Going To Be 20 Years

I feel for Thomas Kelly’s parents, outraged that the turd who killed their son might be out of jail in a mere four years’ time. Had someone killed my son in similar circumstances, I’d expect a much harsher sentence, as would most parents.

But how long a sentence is reasonable for an 18 year old who kills someone with a gutless, blind-side king hit? 10 years? 15? 20?

Notwithstanding the apparently light punishment, there has been a significant amount of misreporting and misinformed commentary around the prosecution and sentencing in this matter.

Firstly, the DPP were almost certainly correct in downgrading the initial murder charge to manslaughter. Read S18 of the NSW Crimes Act carefully, including the definition of grievous bodily harm.

(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.

Could the prosecution convince a jury beyond all reasonable doubt that a single punch, albeit a king hit, was thrown at a person of approximately the same size and age with “reckless indifference to human life”, or that it was thrown with the intent of causing permanent or serious disfigurement?

That would depend significantly on the relative competence of the prosecution and defence, which is hardly justice. Despite Kieran Loveridge being a waste of DNA who will almost certainly be a net drain on society his whole life, I don’t think he is actually guilty of murder. My sense is that’s how a lot of jurors would see it.

At least a downgrading of the charges to manslaughter secured a conviction for a serious offence (probably the correct one), particularly given the guilty plea. The DPP reduced the risk to justice to a single factor: the judge. As it happened, Justice Stephen Campbell let the community down. However, that is not the fault of the DPP. Nor is it the fault of the government: a manslaughter conviction has always provided adequate scope for an appropriate sentence.

Thomas Kelly’s mother’s complaint that “her family had no rights or say at all” is precisely why the separation of the judiciary and government is so important.

In minor matters, victims have a de facto say by their willingness to pursue the matter and give evidence. In serious matters, victims and their families should have no say at all in the nature of charges laid and eventually prosecuted. That should depend on the application of the law to the circumstances of the case and the evidence available. What is the alternative? Selective prosecution and sentencing based on the grief, anger and philosophy of victims and their families? Blood money?

Secondly, the sentence was not four years. It was seven, with a standard 75% non parole period. The perpetrator, Kieran Loveridge has been in custody since his arrest in July last year, meaning that he has at least another four years to serve.

The maximum available sentence for manslaughter is 25 years, but this would have been discounted for the guilty plea, then further discounted due to the defendant’s age. Thus, Kieran Loveridge almost certainly would not have received more than 15 years, even from a harsh judge. That’s a standard non-parole period of 11 years and 3 months, so with time already served, the media would have been reporting 10 years at most.

I believe most of the community would have expected a sentence of more than 7 years, though. 12 would have meant just under another 8 in jail, with good behaviour. Kieran Loveridge would be 27 upon release.

In prison, how much harder criminal would he have become in those prime years from 23 to 27? Is that detriment to the community worth the message of a harsher sentence, as well as allowing the Kelly family more of the feelings of retribution they want and likely deserve? It probably is. If the police keep tabs on Kieran Loveridge after his release, they will be able to tell quickly enough which way he went in jail.

I don’t accept the disadvantaged background = lighter sentence proposition. Justice Campbell stated he had “borne in mind the offender's relative social disadvantage and the difficulties of his upbringing” when deciding on his sentence. This non sequitur seems to have almost been set in stone after the recent High Court ruling.

An explanation is not an excuse. Does the background of the perpetrator make the crime have less impact? Does it mean they are less likely to reoffend? The thesis is that they are less responsible.

So the defendant’s DNA was methylated at key bases due to deprivation and abuse, making certain behaviour more likely. Well, what are any of us responsible for then? To make the environmental argument in a legal setting is a bleeding heart fallacy. It might explain actions, but excuses nothing. Thomas Kelly is just as dead as if he were hit by a private school educated investment banker.

Justice Campbell also stated that in his judgement, “the offender is very unlikely to reoffend”. Really? Why?

Someone from a privileged upbringing, with more support and more to lose is probably less likely to reoffend. Kieran Loveridge is one of society’s dregs. So are his family. His background makes him more likely to reoffend, cancelling out his “deprivation” excuse. This is where Justice Campbell has let the community down: Loveridge should have received no discount due to background or age.

The NSW Attorney General is correct to ask the DPP to appeal against the sentence. However, this is all the government can presently do. There is no need to bring in special laws, almost certainly badly framed. Manslaughter is sufficient. It is Justice Campbell who was the problem in this matter and his sentence is being appealed.

Without breaching the principle of separation of powers, what the government can do is make the judiciary understand community expectations around sentence ranges and the balance of retribution versus rehabilitation for cowardly acts.

What the government should not do is pay heed to ignoramuses like Ray Hadley, who would enact knee jerk responses to every outcome they don’t like, without a glimmer of understanding of the consequences or even inconsistencies. How does calling rugby league games qualify someone to lecture society on points of law?

The Smears Of Mohammed

What are the Smears of Mohammed? Are the Smears a holy relic?

Is there a piece of muslin robe akin to the Shroud of Turin, but covered in brown streaks after Mohammed followed through while scoffing dates?

How do hate protests follow the Smears of Mohammed? Does someone run along waving the Smears, with the crowd behind them screaming: “Death to infidels! No-one may deride our Holy Smears!”?

What if the Smears were dropped in the stampede? Or got wet? How would a devout Muslim know they were the True Smears?

Perhaps the True Smears are kept safely locked away in Mecca, but in a process akin to the Catholic transubstantiation, the smears of any devout Muslim may temporarily become the embodiment of the True Smears in an atmosphere of sufficient religious fervour, such as a mass stoning or the torching of a church.

Now, all of this is very puerile, but that should not be a crime. It is certainly not a justification for murder, assault, arson or any other crime which large groups of disgruntled Muslims have tried to justify under the banner of outrage at blasphemy.

Satire is a vital element of freedom of speech. It doesn’t have to reach a prescribed standard of wit to qualify. Satire with the ironic quality of mocking the people angered by it, rather than the literal target is far more powerful, even if the literal piece is not particularly funny.

Charlie Hebdo’s cartoons on the topic are hardly side splitters per se. But their satire is valid political commentary. Their humour is greatly increased by the fact they satirise the people who are angered by them, rather than the literal targets.

The Onion loves stirring the religious pot. "Controversial Christian Faction Believes Jesus Was Nailed To Two Parallel Pieces Of Wood" is gold (especially the picture). Their more recent blasphemy: "Archaeologists Discover Site Where Desperate Jesus Christ Turned Tricks" seems not to have evoked a wave of fundamentalist Christian demonstrations, beheadings or bombings. Now imagine the speculative violence which would have ensued had the piece been written about Mohammed.

Here’s another one. It is literally directed at pretty much every mainstream religion but Islam, although actually directed at anyone in favour of blasphemy laws, particularly Islamists. It is obscene and childish, but has a reasonable point: Christians, Jews, Hindus and Buddhists are not taking to the streets as a result, threatening death to all infidels and blasphemers, assaulting people, burning cars and buildings. As the article said: “No-one murdered because of this image … upon seeing it, they simply shook their heads, rolled their eyes, and continued on with their day.”

In an open society, citizens would never tolerate laws preventing cartoons or literature mocking or satirizing politicians or political parties and their supporters. In fact, this is an entrenched part of political discourse in free societies. Even debasement via ridiculous depiction comes within the ambit of our freedom of expression, as this gem from Pickering testifies:

Ridiculing self important or moralizing targets by depicting them engaged in some sexually deviant act is a common device, favoured by schoolboys and professional cartoonists alike.

If politicians are fair game, why are religious leaders and figures exempt?

A cartoon showing Cardinal George Pell being blown by an altar boy while writing a letter calling for the sacking of the rector of St. John’s College may be in poor taste (to some), but it makes a valid point. How about a cartoon of the Pope stoking his fireplace with copies of reports of child sexual abuse within the Catholic Church, while dictating a sermon on the sin of contraception?

Many people who aren’t even Catholic would consider satirizing the Pope crossing the line. But this taboo is absurd: it’s a culturally inherited relic of feudalism.

Religion is political philosophy with some fabricated metaphysics and revelations from “higher beings” added as justification for claiming the correctness of the philosophy and hence the error of all others. The metaphysical and revelational components are almost necessarily articles of faith because they are almost certainly untrue. In many cases, the claims are at least practically and often literally untestable. Many other claims are either directly falsifiable or patently absurd.

Adherents who believe the metaphysical and revelational aspects of their religion as articles of faith tend to believe the social and moral elements as corollaries. They are “God’s laws”: instructions for how to live. Hence, religion and politics cannot be separated, since religion tells us all the correct way to live and politics is about how we live together.

These are the people who are dangerous to those who reject their beliefs. They are precisely the types of people who make the ideals of secularism, liberalism and freedom of expression so important.

They are the types who co-opt the law to proscribe blasphemy, which may include telling them their beliefs are delusions.

The likely falsity of the metaphysical and revelational claims religions use to justify their moral and political pre and proscriptions does not invalidate the latter, many of which are reasonable in a liberal society. It simply means that any reasonable moral and political positions need alternative justification, by logical argument and (God forbid) evidence. This is in part how people of religious faith can comfortably live in, support and in fact, create a secular society.

However, part of freedom of speech in an open, liberal and hence secular society is the right to satirise inconsistent and hypocritical philosophical perspectives, which includes religions.

Suppose the beginning of this post had satirized the Shroud of Turin. I’m sure plenty of lefties would have smugly agreed with it. But Mohammed? His worshippers are brown. This article should not be published because it is inflammatory. It reveals me as another crypto-racist!

No it doesn’t. There is no Muslim gene. Their DNA is not the issue. Muslims’ mediaeval, superstitious stupidity is just as bad as Catholics, Baptists or any other white, religious people.

If the left truly believe in a secular society, they must support the fundamental principle of freedom of expression and its extension to satire, not selectively apply it to religions favoured by white people.

And Muslims living in Western societies who use blasphemy as a cover for speculative aggression should be deported. Send them back to the societies whose institutions and structures derive from their interpretation of their religion.

Why Was It Necessary To Go To The High Court For Some Common Sense?

Late last year, I wrote about a workplace injury claim in which the full bench of the Federal Court awarded a public servant compensation for an injury incurred while having sex in her motel room during a work trip.

Initially refused by workplace insurer Comcare, this speculative claim had been to the Administrative Appeals Tribunal, then twice to the Federal Court. Now, finally, the High Court has rejected the claim.

It only took six years and hundreds of thousands of dollars of OUR money, but these factors have little relevance to bureaucrats on the public teat.

How could this matter have been allowed to go all the way to the High Court? Comcare have done nothing wrong: they had to appeal the matter because the Federal Court had set a ridiculous and potentially very expensive precedent.

Why did it take all this time and money to find a set of judges with the common sense to say what almost all citizens expect the law to be?

"In order for an injury sustained in an interval or interlude during an overall period of work to be in the course of an employee's employment, the circumstances in which the employee was injured must be connected to an inducement or encouragement by the employer. If the employee is injured whilst engaged in an activity at a certain place, that connection does not exist merely because of an inducement or encouragement to be at that place.”

Exactly. Only acts necessary to the proper performance of your job are induced by your employer. Having sex is not one of them. Neither is playing cards, Justice Bozo of the Federal Court.

It's all very well to argue that this case tests the distinction between work related and personal activities and that the High Court is the best instution to rule on this. It probably is, however this matter should have been clear cut and the Federal Court should have been able to be trusted to set the correct precedent. Amazingly, even the High Court's ruling was not unanimous.

A significant amount of taxpayers’ money has been wasted on this matter. There now needs to be a reckoning on our behalf.

Firstly, the Federal Court ruling is incompetent and clearly at odds with public expectations. These judges deserve to be censured.

How was this woman able to appeal to the Federal Court in the first place? I doubt she was funding it herself.

A no win, no fee legal firm? Perhaps. If this were the case, they and the plaintiff should be jointly and severally liable for costs for such an obviously frivolous and speculative claim, funded as it would have been by a bunch of lawyers on the make.

More likely, the plaintiff obtained legal aid. If this occurred, whoever at Legal Aid wasted scarce funding on this matter should be sacked. This is not why taxpayers agree to fund some citizens’ legal actions.

Lastly, with the matter decided, the ban on publishing the woman’s name should be lifted. Her claim is clearly meretricious. Taxpayers have a right to know who has tried to rip us off. If the publicity discourages similar, future claims, all the better. Proven grifters should not be allowed to maintain a cloak of anonymity.