Read the scenario below and outline the potential criminal liability of
Richa, Patrick, Shaun & Lucy.
Patrick and Richa are a married couple. Richa has been having an affair with the couple's neighbour, Shaun, unbeknownst to Patrick. Shaun is a single father who lives with his 16 years old daughter, Lucy.
Feeling guilty about the affair, Richa visits Shaun and tells him that it is over. Shaun is heartbroken and says, "That's rich! Well, I'm going to tell Patrick!" Richa, very worried, says "if you tell Patrick I'm going to kill you!" and slams the door in Shaun's face.
Shaun becomes increasingly distraught about the break up and calls Richa on her mobile. "Here's the deal!" he says to Richa, "I won't tell Patrick if you pay me $2000". Richa, reluctantly, agrees and transfers the money right away.
What Richa didn't know was that Shaun had already sent graphic footage of Shaun and Richa having sex to Patrick via an email. That evening, Patrick opens his laptop and finds the email. Enraged, Patrick grabs a knife from the kitchen and starts running towards Shaun's house.
Shaun's daughter, Lucy, is outside her house checking the mail and sees Patrick bolting towards her.
Fearing the worst, Lucy quickly runs around to the side of the house to her Dad’s shed and grabs her father’s rifle. Lucy makes it back to the front of the house, right when Patrick is at the front doorstep and Shaun has just opened the door. Lucy yells “Hey!”, Patrick turns to face her and Lucy pulls the trigger. Patrick is killed instantly. A bullet ricochets and hits Shaun in the arm seriously wounding him.
Assessing and analysing the Criminal Liabilities of the Parties involved
The present criminal case brief has been analysed primarily in light of the provisions of the Crimes Act 1958 legislated and enacted by the Parliament of Victoria.
While assessing the said case brief, the Student has studied the course material in sufficient detail and also accessed other sources on the internet. In the process, the Student has learned to appreciate the distinction between defence and mitigation. According to the Student’s understanding, where a defendant successfully raises a defense, they are found not guilty or are convicted of a lesser offence for the crime committed. By contrast, mitigation is a factor that becomes relevant at the sentencing stage only. On certain occasions, mitigating factors can be so persuasive that merely a nominal sentence may be imposed.
Through the application of IRAC rule, as recommended, the possible criminal liabilities of the parties in the present case brief have been analysed below in points for the sake of lucidity and convenience -
- Richa –
- In issuing the threat to kill to Shaun, is Richa guilty of an offence?
- She may be found guilty of “threat to kill”. She had issued a threat stating ‘I’ll kill you’ to Shaun which attracts the said provision’.
- For the prosecution to prove Richa’s culpability beyond a reasonable doubt, the prosecution will have to show the existence of actus reus absent in the present case.
- She may plead “duress”, as a ‘defence’ for issuing a threat to kill to Shaun because she was under the impression and fear that Shaun would carry out the threat of sending the graphic content to her husband Patrick, which could harm her marital relations with her husband. This is because the case study clearly states that “Richa felt guilty about the affair” meaning she was still interested in saving her marriage to Patrick.
- She might defend the threat to kill by stating that she was under the belief that Shaun would carry out the threat of harm unless the threat was made.
- Richa may also take support of the observations made in Goddard v Osborne,
that in particular situations, an opportunity to seek the protection of the authorities may not be an effective way of neutralizing the threat. She may state that she issued the threat to kill instead of going to the police as she had no guarantee that the police could have protected her from the immediate harm threatened by Shaun.
- In conclusion, Richa may be awarded a lighter sentence or may escape punishment altogether because she did not carry out or had no intention of carrying the said threat.
- Patrick –
- Did Patrick intend to kill Shaun as he proceeded towards his house with a knife in his hand?
- The prosecution may apply the provisions of the Crimes Act (Vic) 1958 to prove that Patrick may be held for murder attempt, since provocation is no longer a partial defence to murder.
- Moreover, the prosecution may prove mens rea and actus by applying the reasonableness test as there was no immediate threat to his or his wife, Richa’s life.
- Patrick may plead the absence of mens rea as a defence and state that he had no intention to kill Shaun.
- In conclusion, Patrick may be convicted for an attempt to murder Shaun.
- Shaun –
- In threatening Richa to inform Patrick about their adulterous relationship, unless Richa gives him $2000, is Shaun guilty of an offence?
- As per the provision of section 87 (1) of the Crimes Act (Vic) 1958 – ‘A person is guilty of blackmail if, intending to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces….’
- The prosecution may prove mens rea and actus reus necessary for blackmail by proving that Shaun had made an unwarranted demand for money from Richa with the accompanying threat to expose their affair to Patrick.
- Shaun may plead defence under the provisions of section 87 (1)(a) and 87 (1)(b) of the Crimes Act (Vic) 1958 – ‘and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief - (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is proper means of reinforcing the demand. He may plead that since he was distraught by Richa’s decision to end the adulterous relationship, he thought making a demand for money would persuade her otherwise.
- Shaun may be found guilty of the offence of blackmail and sentenced accordingly.
- In sending the graphic video content to Patrick even after receiving money from Richa, is Shaun guilty of an offence?
- As per the provision of section 82 (1) of the Crimes Act (Vic) 1958 – ‘A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).'
- Shaun had already sent the email containing graphic video details to Patrick even while promising otherwise to Richa. He subsequently obtained 2000 dollars from Richa through such deception. The said offence is punishable by a Level 5 imprisonment;
- No reasonable defence can be presented. Shaun may plead for a lesser sentence by pleading guilty.
- In conclusion, Shaun may be convicted for obtaining financial advantage by deception.
- Lucy –
- Since Lucy is above 10 years of age, the doctrine of doli incapax does not apply to her and therefore, she is liable to be tried for the offence committed.
- As per the Children and Young Person’s Act 1989, the definition of a Child under section 2, she will be tried as a child, not an adult, thereby attracting minimum punishment.
- Since the offence she is being prosecuted for is an indictable offence, i.e., murder/manslaughter/homicide by firearm (using the slash cause the exact nature of the offence is yet to be established), the criminal division and Children’s Court do not have jurisdiction to conduct the said matter and the same may be performed by a judge and jury in the County Court or the Supreme Court.
- As the provisions of Crimes Act 1958, her criminal liability may be analysed thus -
- Is Lucy guilty of an offense by discharging the rifle that resulted in Patrick’s death and seriously injured Shaun?
- As per the provision of section 5(b) of the Crimes Act (Vic) 1958 – ‘A person who, by discharging a firearm, causes the death of another person in circumstances that constitute manslaughter is guilty of homicide by firearm…’.
- As per the provision of section 24 of the Crimes Act (Vic) 1958 – ‘A person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence.
- Lucy may be found guilty of “negligently causing serious injury” to Shaun;
- The prosecution is required to prove mens rea and actus reus beyond a reasonable doubt, that Lucy intended to kill Patrick and that while firing the rifle at Patrick, Lucy aimed it in a manner such that the shot would necessarily be a fatally wounding one.
- The prosecutor could also apply the doctrines of express malice, negligence and recklessness by stating that Lucy could have used another method for stopping Patrick and at her age, Lucy is quite capable of understanding the consequences of using a firearm.
- The prosecution may also seek punishment for murder on the grounds of excessive self-defence, as using a rifle was not a reasonable response to the circumstances.
- Lucy may plead the following defence -
- She may plead the absence of mens rea, as she had no intention to kill Patrick but only prevent harm/serious injury to her father, Shaun.
- She may plead the ground that, in her view, the perceived threat was imminent and she regarded her actions as the only reasonable way to deal with the emergency.
- She may specifically seek defence under section 322R sub section (3) wherein she committed the act to avert a sudden or extraordinary emergency, since the sight of Patrick running towards her father, Shaun, gave her reason to believe in the existence of immediate danger to Shaun’s life/person.
- She may also seek “self-defence” as a ground for defence. The principle of self- defence also applies in the case of murder if the person believes that the conduct is necessary to defend another person from the infliction of death or another severe injury.
- The Court may regard the following as mitigating factors when determining criminal liability of Lucy –
- The absence of mens rea.
- The test of reasonableness. The presence of a knife in Patrick’s hand may have given rise to a reasonable existence of threat in Lucy’s mind.
- Lucy’s age can be the most significant factor in pleading for a lighter sentence because an essential objective of criminal law is the “rehabilitation” of the criminal. Since she is at a young age and has no prior criminal antecedents, she can be reformed.
- In conclusion, Lucy may be tried and punished for manslaughter by the unlawful and dangerous act. The observations made in R v Larkin could be of relevance in this context, wherein as per the objective test – ‘if the act which a person is engaged in performing is unlawful, then, if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently, he causes the death of that other person by the act, then he is guilty of manslaughter’.
- Lucy may be found guilty of “negligently causing serious injury” to Shaun.
- O‟Malley, Sentencing Law and Practice 2nd ed (Round Hall Sweet & Maxwell, 2006); and Herring Criminal Law (Palgrave Macmillan Law Masters 2005) at 355
- Goddard v Osborne 1978) 18 SASR 481)
- R v Duffy  1 All ER 932
- R v Loughnan  VR 433
- The Crimes Act (Vic) 1958
- D. Others/Sources from the Internet
 See generally O‟Malley, Sentencing Law and Practice 2nd ed (Round Hall Sweet & Maxwell, 2006); and Herring Criminal Law (Palgrave Macmillan Law Masters 2005) at 355.
 The Crimes Act 1958 (Vic) Section 20
 The Crimes Act 1958 (Vic) Section 322O
 The Crimes Act 1958 (Vic) Section 3b
 R v Loughnan  VR 433
 The Crimes Act 1958 (Vic) Part IC
 The Crimes Act 1958 (Vic) Section 322K (3)