Issue 1

The issue to be discussed in the following scenario is considered to be whether Tiny and Viktor have any potential liability for the death of Wes.

As per Section 25A of the Crimes Act 1900 (NSW) legislation assault that causes death is considered to be punishable as an offence. The individual guilty under this section as per Section 25A (1)(a) would have to hit another person intentionally and (b) would not be authorized or excused by law, (c) would cause death of the other individual. These individuals would be subjected to the maximum penalty which is imprisonment of twenty years. As per Section 25A (2) if the individual is above eighteen the they would be guilty for the offences committed under subsection (1) in case of being intoxicated. The maximum penalty resulting through such is considered to be imprisonment for twenty-five years. As per subsection (3) if an individual dies due to the assault caused because of the injuries received directly from such would also act as the consequence of an assault. Therefore, as per subsection (4) the proceedings of the offences mentioned in subsection (1) and (2) would not have to prove that the death was reasonably foreseeable. As per subsection (7) if through a trial of murder and manslaughter the jury is not satisfied of the offence until proven through subsection (1) or (2) then they may acquit the individual for murder or manslaughter and the punishment would be based on such crime. It can be perceived through the case of Zanker v Vartzokas (1988) 34 A Crim R 11.

As per Section 61 of the Crimes Act 1900 (NSW) common assault is considered to be prosecuted through indictment as the individuals whosoever assaults any other person in spite of not causing actual bodily harm would be liable for imprisonment of two years. A common assault thus, under the statutory instrument can be understood as an act that would intentionally or recklessly cause harm and it would apprehend the other individual to unlawful violence through strikes or touches among other things without any kind of legal justification. The statutory legislation in New South Wales is supposed to set out the majority of the criminal offences. Therefore, the particular section is considered to carry a maximum penalty of two years or a fine of 5,500 Australian Dollars. The courts are supposed to be hesitant in implementing assault in the framework of plaintiff’s eggshell as one is considered to be uncommonly susceptible to harm. It can be highlighted in the case of R v De Simoni (1981) 147 CLR 383 at 389. Therefore, these are supposed to be found in the tort law as well as the elements need to be properly fulfilled. The intent of the person assaulting the other needs to exist along with the apprehension of a harmful contact and along such causation. Hence, if an individual is found guilty of common assault, then the gravity of the assault is supposed to be determined by the court and through such the order is decided or given by the judge.

Rule 1

The following can be understood through the application of the rule in the scenario:

Potential Liability of Tiny for the death of Wes

It can be understood that Tiny and Wes have been bitter personal enemies and they were preparing to settle their feud by bare-knuckle fighting. This was arranged by the Sergeants at Arms at each respective club. Therefore, it can be understood that both Tiny and Wes were aware of the injuries that could be acquired due to such bare-knuckle fight. In spite of such they went ahead. Therefore, the defendant Tiny in this case can claim for consent defence as the actions might have constituted as an assault but such was consensual as they were playing sports. Nevertheless, it would not be applicable in case of unlawful situations where the degree of harm is severe. However, it can be understood that, in spite of such the injuries caused to Wes ultimately caused death and as per section 25A if the death is foreseeable then the person would be liable for assault. Hence, from the analysis of the scenario, it can be understood that, Tiny might be liable for assault as per section 25A of the Crimes Act 1900 (NSW) as he and Wes had entered into a fight without any lawful purpose but he can claim for consent defence as the fight between them was consensual. This might lessen the potential liability of Tiny but such would have to be determined by the court.

Potential Liability of Viktor for the death of Wes

As per the analysis and the assessment, it can be noted that, Viktor would be liable for common assault as he was recklessly and intentionally delaying Wes from medical treatment. Therefore, he was liable for this crime under Section 61 of the Crimes Act 1900 (NSW) as the act caused the other person to fear immediate personal violence as they recklessly or intentionally prevented the other person from the assault without any proper legal justification. Viktor could have taken Wes to the hospital after the bare-knuckle fight when he suffered such grave injuries but he acted recklessly in such a situation that ultimately caused death. Therefore, he would be liable for common assault.

Conclusion

Thus, in conclusion, it can be stated that, Tiny and Viktor would be liable for the death of Wes as both had intentionally caused harm that led to death under the Crimes Act 1900 (NSW).

The issue to be comprehended through the present scenario is whether there are any potential liabilities of Bruiser for the death of the passer-by and along with such for the injury caused to the young woman.

Application 1

As per Section 18 of the Crimes Act 1900 (NSW) murder and manslaughter are defined as offences where Section 18(1)(a) deals with murder where the act committed by the accused would have to be causing a death and this was done in relation with reckless indifference to human life as such was done with the intention of killing or inflicting any kind of grievous bodily harm upon the other person or in an attempt to commit any crime as an accomplice. It can be illustrated through the case of R v Crabbe [1985] HCA 22, (1985) 156 CLR 464. Therefore, this particular crime is punishable with imprisonment for life or up to twenty-five years. It can be elucidated through the case of Campbell v R [2014] NSWCCA 175, Court of Criminal Appeal (NSW).

On the other hand, as per section 18(1)(b) every other punishable homicide is considered to be understood as manslaughter. As per Section 18(2)(a) is considered to state that no act that is omitted or committed without any malicious intent or any act which gave the accused a lawful excuse shall be pertaining within the section. It can be implemented through the case of Royall v R [1991] HCA 27, (1991) 172 CLR 378. However, (b) states that any act or omission of an act would not be punished within the scope of this section if the person kills the other by misfortune only. Thus, it can be stated that section 18 is supposed to state that no one is guilty of murder if the person killed the other accidentally. Thus, it can be stated that, manslaughter is supposed to be the unintentional but illegal killing of some other individual. Nevertheless, a person might not be held liable in case of a misfortune or accident.

Section 33 of the Crimes Act 1900 (NSW) is considered to deal with wounding or grievous bodily harm with intention where subsection (1) states that if any grievous bodily injury has been caused with the intention of causing such then the individual causing such harm would be guilty of the offence which implies that the maximum penalty would be faced by the individual which would be imprisonment up to twenty-five years. It can be illustrated through the case of Aouli v R [2012] NSWCCA 104. However, as per subsection (2) the intention to resist arrest would also lead to make the individual guilty of offence as such might cause grievous bodily injury or harm and the maximum penalty would be twenty-five years. Subsection (3) is supposed to provide an alternative verdict on the trial and this would be on the individual who is charged with the offence against the section where the jury is not considered to be satisfied with the offence that is proven, but is satisfied that the individual has committed an offence pursuant to section 35.

Conclusion

It can be understood through the analysis of the scenario, that Bruiser as per the above-mentioned rule would not be liable for manslaughter or murder for the death of the passer-by because it was accidental or through misfortune. However, since he possessed a gun in order to threaten someone the accident could have been foreseeable. Therefore, due to such he might be having an individual liability for assault or grievous bodily harm that ultimately led to the death of the passerby. Nevertheless, as per the above-mentioned rule, it can be understood that he had not intended on killing the passer-by and such was an accident because he slipped and fell onto the concrete where the shotgun went off. Thus, Section 18 can be applied where the individual liability would be null and void because of misfortune. On the other hand, as per section 33 of the Act, Bruiser would be liable for causing grievous bodily injury of the young woman behind the counter as he had injured her by raising the shotgun as such hit the young woman across the face with the butt of the rifle. Therefore, such was his fault which made him liable for the injury. Furthermore, he would also be liable for assault caused to the old man or the passer-by as he killed him because he dropped his shotgun.

Conclusion

Therefore, in conclusion, the potential liability that can be imposed on Bruiser for the death of the passerby is manslaughter but due to the accidental death which was a misfortune he might not be held responsible. On the other hand, he would be liable for assault for grievous bodily injury because he hit the young woman in the counter and he would also be liable for assault as he acted recklessly that caused death of the passer-by.

The issue to be analyzed from the current scenario is whether Section 98 of the Crimes Act 1900 (NSW) be applicable on Bruiser if he is assumed to be guilty.

As per the Section 98 of the Crimes Act 1900 (NSW) robbery with the arms among other things and wounding is considered to be enumerated where, whosoever, is suppose to be armed with any kind of offensive weapon or any instrument or is with the company of another person is supposed to rob or assault the other person with the intention of doing those things is considered to be liable for imprisonment of twenty-five years as they are supposed to inflict grievous bodily injury or wounds.

Issue 2

As per the analysis of the scenario, it can be understood that Bruiser would be liable of robbery pursuant to section 98 of the Act as he committed robbery with arms and wounding. He stole something from the other person through the usage of a weapon as he assaulted or wounded the other person without a cause in order to suffer grievous bodily injury. He also caused harm to a person with the intention of robbing them. Bruiser caused bodily harm to the young woman in the counter and he entered the store with a shotgun with the intention of robbing. Therefore, section 98 is supposed to find Bruiser guilty of these offences and due to such he would be facing a maximum penalty of twenty-five years of imprisonment. It can be understood that it is a harsh penalty but the maximum would be applicable only in extreme cases or serious cases.

Conclusion

Thus, in conclusion, it can be stated that, Bruiser would be liable for committing robbery with armed weapons because he had the intention to rob and in addition to such, he also caused grievous bodily harm to the young woman in the counter as he had the intention of robbing. Therefore, he would be facing the maximum penalty of twenty-five years of imprisonment.

Case Laws

Aouli v R [2012] NSWCCA 104

Campbell v R [2014] NSWCCA 175, Court of Criminal Appeal (NSW)

R v Crabbe [1985] HCA 22, (1985) 156 CLR 464

R v De Simoni (1981) 147 CLR 383 at 389

R v Sharp [1957] 1 QB 552 at 559

Royall v R [1991] HCA 27, (1991) 172 CLR 378

Zanker v Vartzokas (1988) 34 A Crim R 11

Books, Articles and Journals

Athanasopoulos, George, et al. “Longer-term impacts of trading restrictions on alcohol-related violence: insights from New South Wales, Australia.” Addiction (2021)

Fitz-Gibbon, Kate, Jude McCulloch, and JaneMaree Maher. “NSW Government Sentencing Council: Review of sentencing for murder and manslaughter.” (2019)

Fitz-Gibbon, Kate, Jude McCulloch, and JaneMaree Maher. “Preliminary submission to the New South Wales Government Sentencing Council Review of Sentencing for Murder and Manslaughter.” (2019)

Heard, Catherine, and Jessica Jacobson. “Sentencing burglary, drug importation and murder: evidence from ten countries.” (2021)

Holden, Alexander CL, and Cameron Stewart. “Limits to consent in cosmetic interventions: an update.” Internal Medicine Journal 49.8 (2019): 1022-1025

Mitchell, Rebecca J., et al. “Intentional self?harm and assault hospitalisations and treatment cost of children in Australia over a 10?year period.” Australian and New Zealand journal of public health 42.3 (2018): 240-246

Legislation

Crimes Act 1900 (NSW)