Please mind the gap: an assessment of fatal 'one punch' provisions in Australia

Hemming, Andrew (2015) Please mind the gap: an assessment of fatal 'one punch' provisions in Australia. Criminal Law Journal, 39 (3). pp. 130-147. ISSN 0314-1160

Abstract

This article contends that the recent spate of one punch causing death provisions introduced in Australian jurisdictions, the majority of which create partial mens rea offences by making foresight of the result of the punch, strike or blow irrelevant, fills a 'gap' in the criminal law. This gap involves an assault which causes death but where the Crown cannot prove manslaughter. It further argues that s 161A of the Criminal Code 1983 (NT) provides a model template for one punch provisions because it is constructed under the physical and fault element formula set out in Ch 2 of the Criminal Code 1995 (Cth).The Northern Territory provision is favourably contrasted with the less clearly phrased equivalent s 281 of the Criminal Code 1913 (WA) and s 314A of the Criminal Code 1899 (Qld), necessitated by the need to circumvent the archaic s 23 and
the reasonably foreseeable consequences test. Finally, it is suggested that criticism of the one punch provisions based on the removal of defences such as accident, consent and provocation is misplaced, as the provisions have
addressed community concerns that alcohol-induced violence causing death was inadequately punished previously. Their introduction is also consistent with long-standing offences of driving a motor vehicle causing death which are strict liability offences if the person drives dangerously and the conduct causes the death of another person.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Permanent restricted access to Published version in accordance with the Publisher's copyright policy.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 22 Sep 2015 04:42
Last Modified: 01 Jul 2016 03:35
Uncontrolled Keywords: one punch; fatal; gap; criminal law
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
URI: http://eprints.usq.edu.au/id/eprint/27512

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