Criminal Law Research on Murder Case and Territorial Jurisdiction

CRIMINAL LAW RESEARCH MEMORANDUM1
To: Jane Sackville, Senior Partner at Faludi & Greer Law Firm
From:
Date: 09/05/2019
Re: Criminal Law Research on a Murder Case and Territorial Jurisdiction
A. Murder and Provocation
1. Legislative provisions in the Criminal code 1899 (Qld) relating to murder and
manslaughter.
Sections 302 and 303 provide legislation on murder and manslaughter respectively. Section 302
(1) defines death as a wrongful act of killing another person intentionally or with reckless
indifference. Moreover, a person said to have murdered if they kill another person under certain
circumstances. Firstly, if the offender intends to cause the death of the person or to cause
grievous bodily harm. Secondly, if death occurs as a result of the act of the offender in the
prosecution of the wrongful act likely to cause danger to human life. Thirdly, if the offender
intends to cause bodily harm to another person to enable the commission of a crime such it
causes the offender's arrest or to facilitate the escape of an offender who has committed a crime
or attempted to undertake it. Also, if death occurs by wilfully stopping the breath of any person
for either of such purposes, it is automatically murder.
The main element of murder is intent to kill (men's rea) and does not apply to severe bodily harm
done to a person who subsequently dies. Other features include an unlawful act caused by the
offender and death occurring as a result of the offender's action.
Manslaughter according to the Criminal code section 302, is the unlawfully killing of a person
under circumstances that do not constitute murder and lacks the intent to kill. However, it
automatically becomes manslaughter, if the elements1 of the offense committed are similar to
1 The Queensland Law Handbook, 'Introduction to Criminal Law- Defences against Criminal Charges' (2019)
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those of murder, but the surrounding circumstances include provocation or an act resulting in
killing in the heat of passion.
Murder is different from manslaughter in that it lacks the intent to kill. Also, the punishment for
killing with intent is life imprisonment which cannot allow for mitigation2 or an indefinite
sentence under the Penalties and Sentences Act while that of manslaughter may vary depending
on the facts presented before the court or jury.
Ms. Turner, in this case, was arrested and charged with the offense of murder. Looking at the
facts of the case, the death of Mr. Brown occurred as a result of Ms. Turner's act of hitting him
with a hammer that subsequently led to his death. According to the Criminal Code section 302, if
the offender intends to cause the end of another or to cause grievous harm, then one is guilty of
murder. However, Ms. Turner had no intention of killing or causing bodily harm that leads to
Mr. Brown's death. For one to be guilty of murder, there must have been a conscious thought of
doing the unlawful act or a conspiracy to show that the offender intended to kill. In this case, Ms.
lacks intent.
Moreover, Section 303 states that when a person causes the death of another under the
circumstances similar to those of murder but does the act which causes death in the heat of
passion caused by sudden provocation is only guilty of manslaughter.
2. Legislative provisions in the QCC that apply to provocation as a defense for murder
and its relevance to Ms. Turner case.
Provocation is any wrongful act or insult done to any person, who is under the person’s
immediate care that makes the person lose self-control and induces the person to assault the
person provoking the offender.3 Provocation is available as a defense to an assault charge in
Queensland. Section 269 provides for the security of incitement. Under section 269(1) 'a person
is not criminally responsible for an assault or act committed upon a person who gives the person
provocation.’ Provocation deprives a person the power of self-control and makes them act in the
heat of passion with no intention of causing grievous harm or cause death.
2 Section 305 of the Criminal Code 1899
See Part 10 of the Penalties and Sentences Act of 1992
3 Section 268 of the Criminal Code 1899
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The defense of provocation in murder is available in Ms. Turner’s case, or any other person who
kills without intent or reckless indifference if they can prove that they acted in response to a
provocation or the heat of the moment and they had lost their self-control. The elements of
provocation for murder include; offender working in the heat of passion, death or grievous harm
occurring as a result of provocation, the offender lacking the power of self-control and the
offender has no time to cool off after the sudden provocation.
Section 304 that provides for killing on provocation establishes that 'when a person causes the
death of another in the heat of passion caused by provocation, such that the person lacks the
power of self-control, is guilty manslaughter only.’ Mr. Brown provoked Ms. Turner by showing
up at a Hardware store and claiming that he wanted to see his grandkids and that he was going to
move a house near her residence. S 304(2) states that it is immaterial that the provocation is
based on words alone other than the circumstances of an exceptional character.
However, Mr. Brown had been in a Correctional Centre for 12 months for domestic violence-
related offenses and therefore, he qualifies for one with an exceptional character. Section 304(3c)
states that 'if the sudden provocation has a basis of anything done by the deceased or anything
the person believes the deceased has done to change the nature of their relationship.’ Moreover,
if there is proof of a history of violence that happened when the deceased and the offender were
in a domestic relationship, the defense of provocation is available.4
Ms. Turner had been the victim of domestic violence, and therefore when Mr. Brown appeared at
the hardware shop, this might have caused a sudden provocation that resulted to Ms. Turner
losing her self-control and hit Mr. Brown on the head with a hammer, an act which subsequently
led to his death. Mr. Brown had changed their nature of the relationship with Ms. Turner through
domestic violence that has resulted in their separation and consequently Mr. Brown serving a 12-
month sentence at Brisbane Correctional Centre.
a) The persuasive onus of proof and the evidential onus
The onus of proof is the responsibility or burden to prove something in the context of evidence.5
In every criminal case, the prosecution is required to prove its case beyond a reasonable doubt
4 Section 304(7) Criminal Code 1899
See also Section 304(5) and 304(6)
5 Duhaime's Law Dictionary: Onus Definition, https://www.duhaime.org/LegalDictionary/o/Onus.aspx
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