Australian (ASX) Stock Market Forum

Sentencing in Australia is a disgrace

Jump to new
what is mens rea

what is actus reus

what are the elements of murder

what are the elements of manslaughter

what is the burden of proof and who bears it

what defences (if any) are available

what tests are applied (subjective, objective)

my learned friends

cheers :)
 
Yes, surely. Thousands of case studies and incident reports by both D.A.N. and D.E.S. can't be wrong.

The gasping or breathing response is not caused by the need for oxygen but rather from the build up of carbon dioxide.
When people breath compressed air somewhere in the water column and then start ascent, the air will naturally expand causing the expulsion of gases in the lungs to maintain equlibrium. The ascent continues as the expansion of the gases inside the bouyancy device takes place. It it very difficult for a diver to remove all air from a BCD and nigh impossible for a novice diver to do it. Often this is another factor in why novice divers float whether they want to or not. They are generally reffer to as "floaters" in the wider diving community.
 
Stan 101 said:
Yes, surely. Thousands of case studies and accident reports by both D.A.N. and D.E.S. can't be wrong.
Click to expand...

Well if thats the case perhaps he is guilty of more then just neglecting his duty as a dive buddy, you have to wonder why someone would murder their spouse on their honeymoon though, was there a motive ?
 
happytown said:
what is mens rea

what is actus reus


cheers :)
Click to expand...

I'm far from learned in the concepts of law, but a guilty mind (?) in this case would be very dificult to prove, no?

Sure, there was talk of increased insurance policy before the honeymoon to a foriegn location. Who wouldn't consider more life insurance after gaining a spouse and posible soon to forthcoming offspring?
 
MrBurns said:
Well if thats the case perhaps he is guilty of more then just neglecting his duty as a dive buddy, you have to wonder why someone would murder their spouse on their honeymoon though, was there a motive ?
Click to expand...


Where is one scrap of evidence that points to murder or even negligence as a dive buddy for that matter?

As noted earlier, he shot to the surface to sound an alarm, quite possibly as per PADI standards to the letter.
 
not far off stan101

mens rea is the mental element in an offence

eg intent to cause grievous bodily harm

actus reus is the act itself, the physical element

eg intent to cause grievous bodily harm

murder requires mens rea

in nsw for eg (recognising the discussed incident occured in qld) to attract a prosecution for murder (s 18(1)(a)) the prosecution would have to be of the opinion that they can prove (beyond a reasonable doubt) that the defendant

intended to unlawfully kill the victim and did in fact unlawfully kill the victim;
intended to cause greivous bodily harm to the victim and this unlawfully killed the victim; or
under the felony murder rule, commit an offence that attracts a 20-year sentence and during the commission of said offence someone is unlawfully killed

in the above i refer to unlawful killing to distinguish it from eg killing in self defence (whereupon the burden of proof switches to the defendant who must prove self defence (involving a subjective and objective test - ie subjectively insofar as the defendant feared for their life and objectively insofar as the action taken by the defendant in self defence was that which a reasonable person would undertake)) which is lawful killing

manslaughter (s 18(1)(b)) is basically any unlawful killing that is not murder and can include such things as provocation and negligence etc

as to beyond a reasonable doubt, the simplest way to broach this is

do you have a doubt (if no, it is beyond reasonable doubt, if yes ...)
is it reasonable to have that doubt

manslaughter is always an alternative verdict available in a murder trial

note well the above information is correct to the best of my knowledge insofar as the criminal law in nsw as at 3 years ago (when i had to sit through 2 semesters of it)

cheers :)
 
Thanks, Happytown. Very insightful.

In the text it mentioned negligence causing death could be contituted as manslaughter. How is negligence measured? Bear with me and I'll try to explain the best I can, what I mean.

A man is standing on a train track and a train is fast approaching from behind that clearly will not stop and will surely hit the man if he does not move. A second man is close enough to make his way to the man on the tracks and move them both to safety before the train can injure them.

The second man does not offer assistance due to shock or fear or some primal response. The first man is hit by the train and dies.

Could, in your opinion based on your knowledge of law, the second man be tried due to his inactions?
Is there any difference to being "frozen" by fear and not assisting someone and simply refusing to assist? How are the two types of inactivity differentiated?


Cheers,
 
Stan 101 said:
In the text it mentioned negligence causing death could be contituted as manslaughter. How is negligence measured? Bear with me and I'll try to explain the best I can, what I mean.

A man is standing on a train track and a train is fast approaching from behind that clearly will not stop and will surely hit the man if he does not move. A second man is close enough to make his way to the man on the tracks and move them both to safety before the train can injure them.

The second man does not offer assistance due to shock or fear or some primal response. The first man is hit by the train and dies.

Could, in your opinion based on your knowledge of law, the second man be tried due to his inactions?
Is there any difference to being "frozen" by fear and not assisting someone and simply refusing to assist? How are the two types of inactivity differentiated?

Cheers,
Click to expand...

stan101

re negligent manslaughter by ommission (specifically by ommission, there is a separate negligent manslaughter - i had to go back and re-read textbooks on this - ugghhhhhhh, upon doing this i realise i should have given a better explanation of manslaughter generally, some other time)

i guess it is not beyond the realm of possibility that the person in your fact scenario could be tried, however it would need a teasing out of the facts as they currently stand (in your scenario) to determine whether or not a conviction would be likely or not

the test for negligent manslaughter by ommission

(the second person in your scenario) must be under a legally recognised duty to act; and
(the second person in your scenario) must have failed to act/fulfil the duty in a way that constitutes a high degree of negligence (ie it must be a gross departure from the standard of care expected of a reasonable person (objective test) in the same position as the second person was in); and
the ommission resulted in the death (of the first person in your scenario)

some examples of a legally recognised duty to act include (but are not limited to):

child/parent relationship;
voluntary assumption of care for helplesss persons;
where a person has created a situation of danger by dealing with dangerous things or doing dangerous acts

note negligent manslaughter by ommission does not require mens rea

unless there was a legally recognisable duty to act it is irrelevant whether the second person in your scenario was too afraid or refused to assist

note, discussed here is a legally recognisable duty to act, not a moral duty to act

if there was a legally recognisable duty to act then there would be much argument as to whether the second person's fear or refusal constitutes a high degree of negligence (as discussed above)

i have not read the judgment in this case and can't therefore comment on the trial judge's findings (and not all reporters understand legal reasoning)

cheers :)
 
Fantastic, so many places to make interpretation, so many possibilities for loopholes, so much money to be made.

What it is lacking is old-fashioned common sense.
 
Stan 101 said:
Where is one scrap of evidence that points to murder or even negligence as a dive buddy for that matter?

As noted earlier, he shot to the surface to sound an alarm, quite possibly as per PADI standards to the letter.
Click to expand...

It's all allegations at the moment, but apparently she had a US$160,000 life insurance policy - which he tried to raise just before they left for their honeymoon.

Edit: What also bothers me about this case, is that between two divers, they should have four regulators. How many failed?

15m is also not enough to cause lethal decompression issues... The guy was a rescue diver, which is kind of like having your doctorate, compared to having a diploma for just a regular PADI certified diver. Shouldn't he have known this?
 
Sunder said:
It's all allegations at the moment, but apparently she had a US$160,000 life insurance policy - which he tried to raise just before they left for their honeymoon.

Edit: What also bothers me about this case, is that between two divers, they should have four regulators. How many failed?

15m is also not enough to cause lethal decompression issues... The guy was a rescue diver, which is kind of like having your doctorate, compared to having a diploma for just a regular PADI certified diver. Shouldn't he have known this?
Click to expand...

The above leads me to think he is guilty and as usual the AU courts are just pussies. Hope the Yanks pull them into line.
 
are you looking for something to do this winter!!!!

something exciting !!!

something inexpensive!!!!

something educational!!!!

are you sick of criticising something you don't understand !!!!
then make your way down to your local district or supreme court, where you can have a front row seat in the criminal trial of your choice

where you get to see the legal system in action, first hand

cheer on as the hanging judge measures up the noose!!!

who knows you may even learn something

the public are allowed to watch almost (a miniscule fraction of very particular trials will for specified times be 'closed to the public') all of a trial from start to finish, entry free

cheers :)
 
I would like to bring attention to the disgraceful Judge Sarah Bradley of Cairns. This woman is out of touch with reality and needs to be booted from the system. This is the judge that let loose the 9 (yes nine!) teenagers raped a 10 year old girl in Aurukun.

Sarah Bradley stated that the nine year old girl "probably agreed" to have sex with all nine. Now how would a nine year old possibly be capable of this decision!?

She offers leniency to Aboriginals and has said "The gross over-representation of indigenous people in our prisons and detention centres is unacceptable" (http://en.wikipedia.org/wiki/Sarah_Bradley_(Judge) ). This mentality has skewed her sentencing.

If someone is a criminal they should be treated as such no matter how many of that race makes up the population of prisons!
 
Aargh! said:
I would like to bring attention to the disgraceful Judge Sarah Bradley of Cairns. This woman is out of touch with reality and needs to be booted from the system. This is the judge that let loose the 9 (yes nine!) teenagers raped a 10 year old girl in Aurukun.

Sarah Bradley stated that the nine year old girl "probably agreed" to have sex with all nine. Now how would a nine year old possibly be capable of this decision!?

She offers leniency to Aboriginals and has said "The gross over-representation of indigenous people in our prisons and detention centres is unacceptable" (http://en.wikipedia.org/wiki/Sarah_Bradley_(Judge) ). This mentality has skewed her sentencing.

If someone is a criminal they should be treated as such no matter how many of that race makes up the population of prisons!
Click to expand...

Agreed, and throw a lot more of her learned bewigged fools of colleagues out with her and the sooner the better.
 
Aargh! said:
I would like to bring attention to the disgraceful Judge Sarah Bradley of Cairns. This woman is out of touch with reality and needs to be booted from the system. This is the judge that let loose the 9 (yes nine!) teenagers raped a 10 year old girl in Aurukun.

Sarah Bradley stated that the nine year old girl "probably agreed" to have sex with all nine. Now how would a nine year old possibly be capable of this decision!?

She offers leniency to Aboriginals and has said "The gross over-representation of indigenous people in our prisons and detention centres is unacceptable" (http://en.wikipedia.org/wiki/Sarah_Bradley_(Judge) ). This mentality has skewed her sentencing.

If someone is a criminal they should be treated as such no matter how many of that race makes up the population of prisons!
Click to expand...

She said the 10 year-old probably agreed? What a disgrace.
 
Aargh! said:
I would like to bring attention to the disgraceful Judge Sarah Bradley of Cairns. This woman is out of touch with reality and needs to be booted from the system. This is the judge that let loose the 9 (yes nine!) teenagers raped a 10 year old girl in Aurukun.

Sarah Bradley stated that the nine year old girl "probably agreed" to have sex with all nine. Now how would a nine year old possibly be capable of this decision!?
Click to expand...

lawyer: your honour, the prosecution can't even get the facts as to the young girl in question's age right. i contend this brings into question the other "facts" (cough! cough!) as alleged

judge (to prosecutor): well

prosecutor (fumbling around, dropping papers): ummm darrrhh hmmmm

lawyer: your honour the defence moves for immediate dismissal on all charges

judge: [insert wikipedia quotes here] case dismissed, will you be seeking costs

lawyer: indeedalee doodalee neighbourino

judge: awseome

lawyer: cheque please

[the preceding bears no resemblance to any actual court proceedings in australia, involving persons either living or dead, no reproduction without express permission]

If someone is a criminal they should be treated as such no matter how many of that race makes up the population of prisons!
Click to expand...
the judiciary, in their bag of criminal sanctions, have more than just incarceration to call upon when dealing with criminals

a strength of our legal system (here, the criminal legal system) is the capacity to appeal (on points of law and the sentence handed down) to courts further up the legal hierarchy

cheers :)
 

Similar threads

bigdog
Bill Shorten: High Flying Fake Or The Worker's Friend
Replies
5
Views
2K
Investoradam
Investoradam
bigdog
J Capital Research
Replies
1
Views
2K
greggles
greggles
N
The Australian Human Rights Commission: A national disgrace
3 4 5
Replies
85
Views
15K
Tisme
Tisme
A
A story of fiction about a country called Astraya
Replies
8
Views
4K
frugal.rock
frugal.rock
B
Australia is a corporate crime paradise (as the head of ASIC once said)
Replies
1
Views
3K
dutchie
dutchie
Top