The term ‘coward punch’ was coined in the moral panic following the acquittals in the cases of R v Little and R v Moody and was discussed by Mr Mark McArdle, shadow minister for Justice , where both incidents involved a one punch death. In Moody an incident occurred in a queue at a taxi rank where Moody punched the victim, breaking his nose. The victim subsequently drowned in his own blood from the broken nose. At trial the defence raised exculpations of self defence and accident. The jury eventually acquitted Moody, much to public outcry.
The ‘One Punch Can Kill’ campaign subsequently launched by the Bligh Government in 2007 reinforced a message that even a single punch could kill. At the time the government attempted to pass legislation bringing in a new offence of “unlawful assault causing death” however it failed to pass parliament. The Hon Judy Spence MP, Minister for Police, Corrective Services and Sport gave us political insight in to the motivations for a change in legislation by suggesting that the public was ‘sick and tired’ of senseless violence. The Safe Night Out Legislation Amendment Bill 2014 (SNO) was introduced with the primary objective of reducing alcohol- and drug-related violence.
When Striking Isn’t an Assault
s245 of the Code sets out the definition of assault and specifically states that it is the application of force to another without that other’s consent. s246(2) states that an assault may be unlawful, although it is done with the consent of that other person.
Principally by changing the wording of the offence so that it does not include an element of assault, parliament is making it absolutely clear that it intended the offence to be a standalone section.
The removal of the element of assault from the offence carries a number of imputations, principally affecting defences of consent and provocation.
The issue of consent has been dealt with in R v Raabe and Lergesner v Carroll which held that consent might be a defence to a charge of common assault or assault occasioning bodily harm. These outcomes were substantial developments in common law which effectively removed a deterrent for brawling in Queensland particularly when compared with other laws in Australia. An example might be a short fight involving punches, hair-pulling, kneeing given that no bodily harm is caused. The reading of bodily harm has been set out in a rule in R v Donovan where it was held that consent was immaterial if the plaintiff was likely or intended to do the defendant bodily harm. This rule implies a determination of whether the result of the action was either intended, or was likely – being reasonably foreseeable. Because the circumstances involved in Little and Moody are examples of incidents targeted by SNO where the consequence of the action was neither intended or reasonably foreseeable, prosecution under the existing laws is difficult resulting in what the public has deemed an unjust outcome.
Given that Raabe and Lergesner have stated that consent could be a defence, if it were raised by the Defendant then as per Woolmington v DPP the prosecution must disprove this beyond all reasonable doubt. This creates a very high threshold for the prosecution.
Given that assault is not an element of s314A the offence extinguishes the possibility of the defence raising consent.
Furthermore, the use of the word “striking” over assault goes towards the removal of ambiguity whether the offence might contain an element of assault and whether striking might be an assault. The defence of provocation is limited to offences where assault is an element therefore by removing any ambiguity over whether the assault is an element the offence specifically precludes the defence of provocation.
This point is further reiterated by s314A(3). Provocation is a defence which can be a complete defence to offences where assault is an element. The removal of the defence of provocation follows the public policy to deter any form of ‘senseless violence’.
When An Accidental Death Isn’t Manslaughter
Following the acquittals of Little and Moody the Queensland Law Reform Commission was instructed to review the excuse of accident and defence of provocation. The government responded to public outcry by looking at the existing offences to see how they might not only punish, but also deter similar incidents from occurring by enforcing the message that any form of violence resulting in a death will not be tolerated.
The intended effect of s314A(2) is precluding the defendant from relying on the accident defence. The defence of accident was stated by Gibbs J in Kaporonovski v The Queen and has been widely applied to cases similar to those targeted by SNO.
Compounding issues for the prosecution in such circumstances when a defence of accident is raised, the onus of proof is on the prosecution to prove beyond a reasonable doubt that the death was reasonably foreseeable, which is often difficult in the factual circumstances of a one punch death like Moody.
By creating the new offence, s314A creates a fundamental difference between itself and manslaughter through application of S314A(2) which expressly removes consideration of s23(1)(b), effectively excluding consideration of whether the consequence of the action was foreseeable. Variations of manslaughter have evolved to consider intention and whether the consequence was foreseeable to account for the wide variety of circumstances that may present themselves. The removal of s23(1)(b) follows on from the rewording of the offence to make it clear parliament intends this section to be severe and standalone, removing the element of assault and precluding the application of the rule in Donovan and as a result precluding the accident defence.
By removing s23(1)(b), any need for the doctrine of mens rea becomes irrelevant, leaving only the need for actus reus. This is a distinction in the offence between it and manslaughter, whereby s314A only requires proof of an act.
A secondary but still important distinction is the introduction of a minimum term sentence in s314A where none exists in manslaughter. This creates a firm stance on defendants charged as a result of a one punch death with little leeway for the judiciary.
Exculpatory Options for a Defendant?
Exculpatory defences describe a legal defence which negatives criminal culpability despite the presence of elements of an offence. The structure of s314A removes a number of exculpatory defences historically relied on by the accused in cases targeted by SNO. In considering this question the writer has not delved in to scenarios that may bring about application of sections such as s261 or s267. The writer has focused on scenarios alluded by parliament to be targeted by SNO.
Parliament appears to have attempted to create an offence that should deter and/or punish the use of senseless violence through a severe punishment and significant limitations on defences.
Principally self defence(s) S271, s272, s273, intention (only s23(1)(a)), s25 extraordinary emergencies , s27 insanity, s24 mistake of fact, s28 intoxication , s29 immature age and s31 compulsion might still apply as exculpatory defences for a person charged with an offence under s314A given the right circumstances.
The case of R v Prow distinguished self defence from provocation where Shepherdson J sets out the elements of self defence and gives us insight in to why self-defence has been left available as an option for a defendant. The government’s intention by introducing this offence has been to stop senseless acts of violence perpetrated against victim’s, it does not seek to preclude those victims from defending themselves.
The need for express exclusion of s270
s270 is expressly excluded under the offence of s314A. This is necessary as it raises the issue of whether the consequence of an action was reasonably foreseeable as an element and brings in similar considerations set out in Donovan for consent and assault. Should this provision be included there would be a fundamental contradiction to other provisions within the offence.
Furthermore should s270 be allowed to be considered it would contradict the ministers expressed objective of bringing about cultural change to end senseless violence and allow law abiding people to enjoy a safe night out. The concept being that a repetition of insults should not be cause for a person to react with physical violence, the one punch campaign was launched to bring about change to stop any and all forms of violence by instilling the message that even one punch could kill.
A number of submissions argued against the introduction of the SNO. The Queensland Law Society provided a simple hypothetical example whereby unjust outcomes might result from the application of s314A through the severity of punishments and removal of defences. Through the removal of assault as an element and the associated removal of defences it has been argued that the Queensland law differs substantially from other jurisdiction’s attempt to provide for instances of a one punch death.
It must be noted that the Valley Liquor Accord supported the new provision and even asked for an extension on the offence. Given that the parties writing this submission are on the western front so to speak, often faced with scenarios involving violence between intoxicated people it must carry some weight.
By introducing s314A parliament has attempted to satisfy public demand by implementing new provisions in the Queensland Criminal Code. It would appear however from the numerous submissions from the legal fraternity that there are some potentially flawed legal arguments presented in its justification. Given that the minister responsible specifically stated that in response to public concerns the SNO was put forward it is clear to see that a flawed law appears more politically acceptable than a moral panic.
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