Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests

Hemming, Andrew (2011) Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests. University of Notre Dame Australia Law Review, 13 (1). pp. 69-112. ISSN 1441-9769

Abstract

This paper contends for a greater role for objective tests on public safety grounds, and building on the measure of objectivity contained in reckless murder at common law and constructive murder in all Australian States, seeks to redress the balance in favour of objective tests. The argument is made for an objective test for recklessness as the underlying fault element, based on the natural and probable consequences test adopted in Director of Public Prosecutions v Smith [1961] AC 290, which is similar to objective ‘Caldwell’ recklessness where the defendant does not foresee the relevant risk but a reasonable person would have, following Caldwell [1982] AC 341. The paper also advances the case for the adoption of purely objective tests for provocation and self-defence, because the current tests in Australia for both defences are confusing as they combine subjective and objective elements.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: This paper is available in AustLi, which is open access.
Depositing User: Mr Andrew Hemming
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 04 Feb 2012 00:52
Last Modified: 26 Aug 2014 22:33
Uncontrolled Keywords: criminal responsibility; objective and subjective tests; Caldwell recklessness
Fields of Research (FOR2008): 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
16 Studies in Human Society > 1602 Criminology > 160204 Criminological Theories
Socio-Economic Objective (SEO2008): C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice
URI: http://eprints.usq.edu.au/id/eprint/20705

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