One Punch Can Kill

The death of 18 year old Thomas Kelly in Sydney and the subsequent guilty plea of 19 year old Kieran Loveridge to a charge of manslaughter in November this year brought home the senselessness of alcohol driven violence.   It was one punch which irreversibly changed the lives of two teenagers and their families in an instant.

The death of Thomas Kelly has also caused the New South Wales government to introduce new legislation similar to that already enacted in Western Australia and the Northern Territory.   So can we expect similar changes in Queensland?

The so called one-punch law were enacted in Western Australia in 2008 and in the Northern Territory in 2012.   The passing of legislation in Western Australia followed the deaths of Dwayne Favazzo, Skye Barkwith and Leon Robinson in similar circumstances to the Thomas Kelly case.   The new legislation seeks to “fill the gap” between manslaughter and an assault which results in the death of a person.

The distinction arises due to the operation of the defence of “accident” on a charge of manslaughter, which requires a jury be satisfied beyond reasonable doubt that the death of the person from one punch was reasonably foreseeable.   The prosecution must prove that an accused intended that the event should occur or foresaw it as a possible consequence or that an ordinary person in his position would reasonably have foreseen the event as a possible consequence.   Accordingly, juries who are not satisfied that the death of a person was reasonably foreseeable may return verdicts of acquittal.

Section 281 of the Western Australian Criminal Code provides an offence which specifically removes the potential operation of the defence of accident where death results from an assault on another:

281.   Unlawful assault causing death
  • If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.
  • A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

Section 161A of the Northern Territory Criminal Code, while it has sought to be more prescriptive, similarly provides strict liability for an offence where the violent act of an accused causes the death of another in circumstances where the accused “engages in conduct involving a violent act to another”.   It further defines that a violent act is the direct application of force by way of a blow, hit, kick, punch or strike and that the maximum penalty is 16 years imprisonment.

The comments of the NSW Attorney General appear to indicate that legislation will be introduced in 2014 reflecting the provisions of WA but with a maximum term of imprisonment on conviction of 20 years.

In late 2007 the Queensland government supported a “one punch can kill” advertising campaign from victims in an effort to inform the community of the risks of violent behaviour, and in particular fatal assault, which may arise in alcohol violence.   The campaign is particularly focused on “Generation Y” who are most likely to be assault victims or offenders.

There have been no statements by the Attorney General which would indicate supporting similar legislation in Queensland.   However, one would have to give careful consideration of unintended consequences that may arise from enacting a new offence of this nature.   The legislation enacted in other states was sought to deal with alcohol fuelled violence and not to diminish the operation of the offence of manslaughter which a person is still liable to a maximum term of life imprisonment.

Whilst potential legislative changes will be of interest in the New Year it would seem important, particularly over the holiday period, that we all learn from these tragic examples and drink responsibility.

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