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Detailed Information about Criminal Law in Australia

3808 Downloads1 I Published: 23 Jan ,2019

Introduction

Crime is a grievous attempt that results in certain atrocious consequences for both the condemnable party and the victim who has suffered due to the crime. It is where crime is usually apparent to result into a life threatening aspect for both the involved set of bodies. It thereby reflects a principal need of law to govern such crime taking place in the nation where it is mostly applicable on the overall nation (Cassese & Gaeta, 2013). The present report is in regard to specify the criminal law in Australia based upon an illustrated case of homicide. Criminal law is entirely concerned with such law-breaking activities that are required to be obstructed. It is thereby known to regulate social behaviour of people by describing all such activities that are referred to be corrupting and are evident to imperil the property and morale of victimized people. Violating these legal clauses is referred to be an offensive act under this law and all countries are known to have distinct rules and regulations as per their different criminal laws (Kaplan, Weisberg & Binder, 2014). In Australia, the criminal law is being administrated by separate legal powers in the Commonwealth of Australia which involves six different Australian provinces along with some individually dominant districts.

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Issues

It is in context to the present case script of Jing who is known to suffer from a very uncommon illness. For which, she is also required to take regular medicinal therapy. Also, she is completely unsighted from one eye and thus requires to wear highly powered spectacles and for which, she is in deep state of depression from several years. However, few months ago, she gets into a relationship with a guy named Hue who came out to be a furious person whom she is now afraid of (Townsend, Hammill, & White, 2015, p30). One day, while going through all this traumatic situation, a random young guy named Zul attempts to make a derogative comment on her disablement by together calling his boyfriend named Hue, a moron looking person. After which, Jing in a high state of anger takes out her knife that she always used to keep inside her purse and atrociously stab the person named Zul to through his heart (Vincent, 2014, pp43-50). Same day, after getting back home, in the similar state of depression she also attempts to pour lighter fluid over Hue in the mid of his sleep. As a result to which, both Zul and Hue were declared dead on the very next morning.

This section is to discourse upon the liability of Jing on the death of both individuals where she is emphatically blameworthy for these incidents as mentioned in the given scenario. However, there together exists certain number of issues on considering such grievous attempts of Jing where she is known to suffer from the state of depression along with a rare disease (Larcom, 2015). This is apparent to make her both mentally and physically incompetent and due to which, she may have attempted such act that resulted in killing two guiltless people. It is however a legal issue where in accordance to the legal clauses, Jing is duly blameable for killing two innocent people where she has no such authority to do so.

Relevant Law

This is to refer to some pertinent set of laws to relate with the aforementioned case of Jing where there usually exists two main constituents of crime on whose basis, it is divided into Actus Reus and Mens Rea. Both of these terms exists with two distinct meanings where Actus Reus is called a guilty act and Mens Rea refers to a guilty mind. This is on combining both these terms, there exists a whole Latin expression which states, “actus non facit reum nisi mens sit rea” saying that an act is not in the status of guiltiness until and unless it has been attempted with a mind at fault (Henry, & Powell, 2015, p104-118). However, mens rea is slightly different from the applicable rule of conduct where it is usually undertaken to separate the one who actually deserves to get penalized than those who do not. It is mostly applied to measure the total degree of fault as a way of grading liability of the person in the law-breaking act. On whose basis, there existed two leading states of mind that either jointly or severally defines the constituent necessity of mens rea to delineate a criminal offence namely intention and heedlessness.

This is on relating to the clauses of an act namely Offences Against the Person Act 1861 whose section number 18 states the label under which, a person will be subjected to be liable for a criminal act (Costa & et. al., 2015, p105-111). It specifies that “Whomsoever shall lawlessly and maliciously with whatsoever means intends to harm another person with some purposeful intent or to merely resist the legal discernment will be referred to be guilty of law-breaking and will be likely to get penalized (Dressler, 2015). In general, such type of criminal law is known to create a major line of distinction among the terms motive and mens rea.

It further states a person can undoubtedly have a respectable motive behind attempting an offending act but any moralistic excuse will not lead to defence the offender where he or she will be liable for intending a forbidden trauma to another person (Triggs, 2015, p129). This simply reflects no defensive measure for a motivative misconduct where below exists the illustration of two such cases. Here, one has clearly distinguished the purpose to motive and another with a principle where the intent must disregard the existence of motive. Wherein, the criminal law has apparently stated two different purposes of a wrong doer namely direct and indirect which is also known as oblique.

As the name suggests, direct intention reflects an obvious attempt of an individual to attempt a criminal act with a preconditioned attitude and grounded accountability towards it. It is thence evident to reflect an intended plan to attain a specific outcome from it and for which, it was necessary to attempt such a grievous act (Berman, 2015, p45). This is on referring to a factual instance of Australia in the year 2009 that proved to be a tragic case of Darcey Freeman, a 4 year old girl child was thrown off a bridge in Melbourne by her own mentally disturbed father.

This led to the death of the child and the enraged Australians protested against such grievous act of her father named Arthur Freeman who later attempted to defend himself by proving his state of depression to be a severe mental illness that resulted in this offensive act. However, this plea was disregarded by the court and he was sentenced for life imprisonment with minimal 32 years of conviction period (Sorensen, 2015, p405). Likewise, there together existed yet another case of Donna Fitchett that in turn explored the influence of depression directly from the eyes of law. This stated the case of a lady who attempted to kill her own sons in the year 2005 by together attempting to suicide to merely punish her spouse for their unsuccessful marriage.

Application

It is a discernible fact where the criminal law is mostly confounded with civil law where in reality, there exists a huge difference among both these terminologies of law. It is where criminal law is indispensable for the correction of a society's functioning with a distinct perception of civil law that is mostly concerned about resolving the disputes among the parties (Dingemans, Yeginsu & Masood, 2013). However, in both the cases, the degree of penalization is referred to proportionate with that to the lawless act attempted by the parties where the penalty can be harsh depending upon the nature and extent of crime and mostly involves life time imprisonment or even sentenced to death.

It is therefore on applying the above referred lawsuits to the present case of Jing, it has been found that Jing's case is related to the second case of Fitchett where the defence duly argued against her and rejected her appeal trying to prove her mental impairment. It is similar as that to the case of Jing where her state of depression cannot contradict her criminal responsibility. This is basically due to a proven law where depression is not evident to fit into the lawful tests of mental impairment (Malcolm, 2015). However, this statement given by law in turn counter to the argument presented by a psychiatrist where depression is a situation in which, the victim dealing with such condition is obvious to go through an exhausting state of mind. This in turn produces disorganised thoughts in his or her mind with various irrational ideas that are enough to result into highly destructive acts (When a person suffering from a mental disorder commits an offence, 2017). Such contradicting statements are somewhat creating an antagonistic condition where on referring to the criminologist, the legal belief is to required to be believed in the case of Jing over here.

It is therefore on referring to the Australian criminal justice system for the people suffering from mental illness, there exists separate tribunal constitution with both legal and medical professionals. Such jurisdiction together involves an associated community member to take some rightful decisions for any mentally incompetent defendant. Similarly, here in the case of Jing, she is also accused for attempting two intentional murders and for which, a legitimate decision is required to be taken up by the court of law in support of both the victim and the suspect, especially where the defendant is mentally sick. It is therefore on refereeing to certain defensive measures for such suspected individual like Jing, section 38 of Mental Health Act 1990 under Forensic Provisions with a primary applicability in New South Wales can be considered.

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Under which, there exists no such precise definition of mental sickness and states that at the time of any offensive act, an individual suffering from some sort of mental incompetence can not be stated accountable for such profaned actions. In such case, the jury is required to declare them guiltless for being into the state of mental sickness. This debatable situation led to the existence of certain forensic tests with a mandatory clause to check the actual condition and classify it into some vital categories such as temporary or permanent and curable or incurable, etc., for taking accordant decision. On whose basis, the defendant body can also be send for the provisioning of applicable treatment rather than taking the decision of imprisonment as in the case of Jing where she is required to come out of the state of depression which is a temporary and curable health problem.

Conclusion

The above report has demonstrated a given case scenario of a person named Jing who murdered two persons and was defensive for her afflicted mental condition. However, on referring to some similar case with a factual representation of each of them, Jing was found to be guilty for the grievous acts performed by her that led to the decease of two innocent people. It is basically in lieu of the fact where the depression is not proven to succeed into the legal tests for deterioration in the eyes of law that will in turn contrast the criminal responsibility of a person suffering from it.

References

  • Berman, A. (2015). Human Rights Law and Racial Hate Speech Regulation in Australia: Reform and Replace.Ga. J. Int'l & Comp. L.44. 45.
  • Cassese, A., & Gaeta, P. (2013).Cassese's international criminal law. Oxford university press.
  • Costa, C. & et. al. (2015). Abortion law across Australia–a review of nine jurisdictions. Australian and New Zealand Journal of Obstetrics and Gynaecology. 55(2). 105-111.
  • Dingemans, J., Yeginsu, C., & Masood, H. (2013).The Protections for Religious Rights: law and practice. Oxford University Press.
  • Dressler, J. (2015).Black Letter Outline on Criminal Law. West Academic.
  • Henry, N., & Powell, A. (2015). Beyond the ‘sext’: Technology-facilitated sexual violence and harassment against adult women. Australian & New Zealand Journal of Criminology.
  • Kaplan, J., Weisberg, R., & Binder, G. (2014).Criminal law: Cases and materials. Wolters Kluwer Law & Business.
  • Larcom, S. (2015).Legal Dissonance: The Interaction of Criminal Law and Customary Law in Papua New Guinea. Berghahn Books.
  • Sorensen, K. (2015). To Leash or Not to Leash the Dogs of War: The Politics of Law and Australia's Response to Mercenarism and Private Military and Security Companies.Adel. L. Rev.
  • Townsend, C., Hammill, K., & White, P. (2015). Fetal alcohol disorder, disability and the criminal justice system. Indigenous Law Bulletin. 8(17). 30.
  • Triggs, G. (2015). Human rights across the Tasman: A widening gulf-hotung fellowship public lecture, 6 April 2016.New Zealand Yearbook of International Law, The. 13. 129.
  • Vincent, N. A. (2014). Neurolaw and direct brain interventions.Criminal Law and Philosophy. 8(1). 43-50.
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