Question: criminal law i need your help with following criminal law...
I need your help with following criminal law advice below:
1. Analyse the scenario for issues concerning criminal liability.
2. Research relevant law and procedure.
3. Follow IRAC for each potential charge – Issue, Rule, Application, Conclusion
4. Issue – Identify the relevant charge or charges that apply in this case and the elements that must be made out.
5. Rule – Identify the statutory or common law rule(s) to consider in deciding whether the charge(s) can be established (the relevant law).
6. Application – Apply the relevant law to the material facts. Analyse the material facts and resolve any relevant ambiguities.
7. Conclusion – Present an informed opinion on your reasoning.
Issue: "Tom and Durea are good friends who frequent the ‘Railway’ bar in Eldor after work.
The Railway bar is an old two-storey hotel on the main street in Eldor.
On a Friday night in January of this year they were drinking for some time together when they both decided to see who could hang out the longest on the outside of the verandah railing on the second storey. This involved climbing over the railing and standing on the weathered timber edge of the verandah over the street below. They agreed to help each other to get their balance on the outside of the railing before leaning out over the street.
Tom went first and was supported by Durea to climb over and to steady himself before attempting to lean out over the street. He was still being held by Durea when Durea pretended to let go – allowing Tom’s arm to slip within Durea’s grasp momentarily. Tom felt as though he was going to fall to the street, and he reacted angrily saying ‘You could have killed me!’ and ‘I’ll get you for that.’ Durea said, ‘I was just joking’ and helped Tom to get back over the verandah railing.
Durea agreed to take his turn and climbed over the railing. Durea was quite unsteady and needed support. Tom decided to teach Durea a lesson and proceeded to give Durea a ‘fake push’ whereby he meant to push and at the same time grab Durea to give him a fright. However, when he did this, he was not able to grab hold of Durea and Durea fell to the street below. Durea suffered severe life-threatening injuries in the fall and lay sprawled on the street below. Within moments, a car that was being driven erratically by a drunken driver sped past the Railway bar and the driver ran over Durea as he lay on the street. The impact with the car killed Durea.
Advise on the possible charges that might be laid against Tom".
Lei could be charged with murder, under s 18 of the Crimes Act 1900 (NSW). The elements of this crime are defined at common law. The prosecution must prove all offences beyond reasonable doubt.
1. an intent to inflict grievous bodily harm, or
2. an intent to kill, or
3. reckless indifference to human life.
Application1 (any case law or statute):
Presence of alcohol
Capacity related debate?
Cause of death the falling and suddenness of impact; organ failure?
Or was the cause of death by the car?
How high was the fall?
Third element - intention (fault element). Was Mike attempting to perform a citizen’s arrest under s 231 of the Law and Enforcement (Power and Responsibilities) Act 2002 (NSW) but did so with too much force?
Application2 (any case law or statute):
Section 25A(7) Crimes Act 1900 provides that in a trial for murder the jury may return an alternative verdict for an offence of assault causing death while intoxicated under s 25A(2) or assault causing death under s 25A(1). Sections 52AA(4) and 52BA(4) Crimes Act permit the jury to return an alternative verdict for the offences under ss 52A and 52B where the accused is indicted for murder or manslaughter.
Law relating to intoxication: The effect of self-induced intoxication upon the mental element of an offence is set out in Pt 11A Crimes Act 1900. In effect, Pt 11A divides offences committed after 16 August 1996 into two types: (a) offences of specific intent, and (b) other offences.
Application 3(any case law or statute):