SALLY ANDERSON: He obviously is starving and he’s taken the peach. And you think, well, is there really anything wrong with that. Well, unfortunately there is. He’s committed theft, which falls under Section 74 of the Crimes Act. A person steals if he is dishonestly appropriating property belonging to another with the intention of depriving the other of it. When considering the AR, we need to determine if there has been appropriation that property has been appropriated or e-property has been appropriated and if the property belongs to another. Well firstly, he has appropriated property hasn’t he? He’s taken the peach. And does the peach belong to another? Well yes, it’s on Francesca’s property, she has ownership of the peach.
Therefore he’s fulfilled the AR requirements for theft. But what about the MR? Does he have the guilty mind? Because remember he said, he took the peach because he was starving, surely that means he doesn’t have a guilty mind. To prove the MR, the prosecution would need to prove that Harry intended to permanently deprive the owner of the peach and that he was dishonest at that time. Now, the peach is a fungible. So if an item is a fungible, it means it cannot be replaced. Because once you take the peach, and you eat it, you cannot give the peach back. You’ve eaten it, it’s disappeared.
So if an item is a fungible and you’ve taken it, it means that you had the intention to permanently deprive the owner of the item. He cannot return the same peach. So we fulfilled that element of the mens rea. So Harry’s conduct is dishonest if he didn’t believe he had a legal right to take the property, that he– or that the owner would consent, or that the owner could not be discovered by taking reasonable steps. So here, he didn’t believe he had a legal right to take it. We don’t think he believed that the owner would consent. And he could have found the owner if he’d taken some steps because it was her house.
So we would probably find that Harry has been dishonest when he’s taken the peach. So we have a fulfilled our actus reus elements and our mens rea elements. Harry will try to argue that he was starving, so therefore he shouldn’t be liable. Unfortunately for Harry, being starving is not a defense to the offense of theft.
ALAN DAVIS: Fruit lying outside the boundary of private property, i.e. fruit hanging over a fence into a public area is considered to be public property. So anyone can legally take fruit. So this means that Harry can take a bunch of juicy grapes from the vine overhanging Francesca’s fence onto the Main Street because it’s classed as public property, whatever he wants to do with it he can. If you had a fright, say, well there would be a question and an argument whether there was a voluntary action there. Same thing such as a spasm, or whether even if your sleep walking, that’s often the case, whether it was a voluntary act involved.
And you move on to the next element, for there to be a murder. And the next element is–
SALLY ANDERSON: –causation. So the act must have caused the death of the victim. So in this case, did Harry’s act of pushing Francesca cause her death? Now, when we look at causation, we need to determine if the act was substantial and operating cause of death. Did anything happen in between Harry’s act of pushing Francesca and her dying that would break this chain of causation? In this case, we could say that there is no intervening act. Harry pushed Francesca, she fell back on the fence, and she died. The remaining two elements of the actus reas for murder are death and human being. Now, obviously in this case, Francesca is a human being.
So we do not need to go at lengths to prove that. And in this case, she has died. So moving on to the mens rea for murder, we need to prove that Harry had the requisite intention or was reckless as to causing death or grievous bodily harm. What is grievous bodily harm? It’s been defined as being really serious bodily injury.
ALAN DAVIS: And that’s defined by common law and cases it’s been defined by.
SALLY ANDERSON: So let’s look at what happened here. The facts say he got a fright and then he pushed Francesca. So it’s unlikely that he had any intention to kill her or to cause her grievous bodily harm. However, did he act recklessly? Did he foresee the probability that death or grievous bodily harm would result and still went ahead and pushed Francesca anyway? It seems unlikely, based on these facts, that Harry foresaw the probability that death or grievous bodily harm would result. What do you think Alan?
ALAN DAVIS: Well, I think you’re probably right, Sally. Because if you think about it, the split second decision, and that was involved here in this scenario. And the fact that you could not have foreseen the various serious consequences of the push, I think I would come to that conclusion personally. But if you can’t prove murder beyond reasonable doubt, then I guess we need to consider manslaughter as an alternative. And there’s two types of manslaughter, isn’t there?
SALLY ANDERSON: We have unlawful dangerous act manslaughter and we also have negligent manslaughter. So unlawful dangerous act manslaughter applies, where the accused has committed an unlawful and dangerous act resulting in the victim’s death. Whereas an accused may be charged with negligent manslaughter when neither act or omission is not in itself unlawful. They are liable because they owed a duty of care to the victim. Be it a general duty of care not to cause harm to others, or because of the relationship they had with the victim. So the liability for negligent manslaughter is centered on causing death through lack of care that goes beyond mere negligence.
ALAN DAVIS: I guess if we apply the facts, though, to the law in terms of view the A manslaugher– the AR. Harry’s act of pushing Francesca backwards is a voluntary act we know that caused death. So for him to be liable for UDA manslaughter, the act needs to be unlawful and dangerous. So we need to really understand what an unlawful act really means criminally, right? So I guess that would be an assault, that could be an unlawful act. You haven’t been granted permission to do it. But what about it but the fact it has to be dangerous?
So I think if my understanding is correct here, would a reasonable person have realized that their lawful act was exposing others to an appreciable risk of serious injury? And that comes from case law, from the case of Wilson. So in this case, I think a reasonable person would realize that pushing someone backwards exposes them to a risk of serious injury. So I think that element could potentially be met.
SALLY ANDERSON: I agree. So if we’ve proven our actus reas for unlawful dangerous act manslaughter, what is the mens rea?
ALAN DAVIS: Well, did Harry intend to commit the UDA? And I would say, yes, it does appear because he intended to push Francesca, I mean he pushed. So whilst he did not intend to kill or cause grievous bodily harm and therefore not liable for murder, I think you could be liable for UDA manslaughter.
SALLY ANDERSON: Yeah, I think you’re right. He may be liable for negligent manslaughter if it is found that the act of pushing Francesca was not an unlawful and dangerous act. Because for negligent manslaughter, we do not need an unlawful and dangerous act, we just need to prove that the accused committed an act that caused the death and that they owed a duty of care to the victim. So the actus reas for negligent manslaughter is the same as murder in this case.
ALAN DAVIS: Which is really good because you can cross reference, we’ve already gone through it, so the same elements.
SALLY ANDERSON: But what about the mens rea?
ALAN DAVIS: Well, we need to determine if his act– if he acted negligently. So to do this, we first need to establish that he owes a duty of care to Francesca. Now, he doesn’t know her. So if you think about it, how can he? Right? But he can still potentially have a duty of care not to harm others, that’s a general duty. But the next step to determine, I would say, is the standard of care of a reasonable person in the same situation as him. So what would a reasonable person have done in the circumstances? Well, I would say the reasonable person would not have pushed Francesca over.
SALLY ANDERSON: Yeah, I agree they wouldn’t have pushed her over.
ALAN DAVIS: But if that’s the case, and has he breached the standard of care?
SALLY ANDERSON: Yes, he has.
ALAN DAVIS: And for him to be criminally liable for negligent manslaughter, he must have breached the standard of care by such a gross amount that there was a high risk of death or grievous bodily harm would follow. So the prosecution here must prove that the accused was careless as to this very high degree. And this is the case here, Sally?
SALLY ANDERSON: I think it’s probably arguable in this case. Harry might also raise a defense. He might attempt to argue that his actions amounted to self-defense. Now, this falls under the crimes act under Section 322 K. For Harry to prove self-defense, it requires proof that Harry believes that the conduct was necessary in self-defense. And he needs to prove that the conduct was a reasonable response in the circumstances. So I think in this case, while Harry may have believed that pushing someone backwards was necessary in self-defense–
ALAN DAVIS: Like to protect himself.
SALLY ANDERSON: –to protect himself. It is unlikely that it was a reasonable response as in the circumstances as Harry perceived them to be. It doesn’t appear that Francesca posed a threat to Harry. And his response would appear to be excessive in this case. So I would argue that self-defense wouldn’t work for Harry, here.
ALAN DAVIS: If self-defense was found to be successful, then he would be acquitted of the charge of manslaughter and he would go free.
SALLY ANDERSON: Intoxication is not in itself a defense. Depending on the level of intoxication, it might affect the formation of the actus reas, it might affect the voluntariness of the conduct, or it may affect the mens rea. But this is only if the intoxication is not self-induced. If the intoxication is self-induced, the accused conduct is assessed on the basis of the standard of a reasonable person who is not intoxicated. So it doesn’t impact on the accused self-defense argument. However, if the intoxication is not self-induced, it might impact on the accused self-defense argument.
ALAN DAVIS: And often this might come into play, such as if drinks are spiked.