Criminal Law And Procedureauthor’s Namecourse Iduniversitydate Essay Examples
Criminal law protects the society by detecting and prosecuting criminal offenses in the society and protects the right of the accused people. It is the prosecution of a person found guilty for violation of laws by the government (Higgins, Thatham and Banks, 2008). It regulates the conduct of the society and prescribes harmful, threatening and endangered activities for the safety of the people living in the society. For safeguarding the rights of the people and keeping the society safe, police department works hard to maintain the laws and decorum in the society. In the scenario presented, it can be seen that Emilie was arrested by two police officials just because of assaulting the constable by pushing him to escape.
Section 58 Crimes Act 1900 (NSW)
As per section 58 of the Crimes Act 1900, police can arrest any person for committing a serious indictable offence against any officer being a peace officer, constable, custom-house or prison officer, sheriff or bailiff or any person acting on behalf of any officer (Austlii.edu.au, 2015). If the person is found to be guilty by the court, he or she is liable for an imprisonment for five years. Though the police official can arrest a person found guilty to assault an officer in duty, he or she needs to maintain some procedure for arrest. If the police officer finds anyone suspicious, he or she can arrest that person at any point of time.
Procedure of arrest
As per the law stated under sec 58 of the Crimes Act 1900, a police officer can arrest a person found guilty for assaulting an on duty officer and resisting arrest. By arresting a person, the fundamental rights of the person is taken away to freedom. A police officer needs to follow several procedures while arresting a person so that all rights of the person remains protected. A police officer can arrest a person in three different circumstances. Firstly when the officer observes the crime personally, secondly when the police has probability to believe that the person has committed a crime, and thirdly when an arrest warrant in issued by the judge (Findlaw, 2015). Here in this case, the police officials find Emilie to behave suspiciously. Therefore they ask her for her identity proof. But after all test, they finds Emilie to behave in some different manner and ask her to come to police station for more queries. The suspicious behavior of Emilie was the cause to believe that she has committed some crime which made the police officers to arrest her for more enquiries.
Breaches of procedure
When Constable Parker found Emilie behaving in a suspicious manner, he asked her to wait till he makes some enquiries from the police station. But Emilie became restless and pushed Parker and tried to get back into the car. At that very moment Constable Parker arrest her and asked her to site in the car and took her to the local police station. After spending the whole night in police lockup, without any food and medical backup, she was questioned on the next morning at 7am. During the interview session Emilie refused to answer any of the questions of Parker. Later on Parker file the FIR with a reason of arresting her under Section 58 of Crimes Act 1900 for assaulting an on duty police officer and resisting arrest. As per the law the breaches of procedure of police arrest is a serious offence that is punishable under court of New South Wales.
Impact of these breaches on the prosecution
As Emilie broke the law under Section 58 of the Crimes Act 1900 (NSW), she was arrested by Parker on Saturday night and was treated with no food and medical backup for the whole night. As she assault Parker during his duty and behaved suspiciously, she was questioned by police for 90 minutes and was allowed to go back home on a conditional bail by the officer in charge. Due to the breaking of the law under section 58, she is liable to an imprisonment of up to five years under the court of law of New South Wales. Due to the breaches of the procedure she became a suspect for a serious crime and when the police enquired about her from her neighbors, they came to know about Emilie’s fatal assault on Jack that led to death of jack last day. She was again arrested by the police on the afternoon of that day and charged with murder under Section 18 of Crimes Act 1900 (NSW).
It is important for the normal public to cooperate with the police officers with their enquiry. Police department is there to protect the social rights of the people and control crime in the society. Hence, it is a serious criminal offence to assault on duty police officer. When a police officer suspects someone for committing a crime, he or she can arrest the person without stating the reason for the arrest. If the person resists the arrest, the police officer has the right to use force to arrest that person. If the person assaults the police officer, he is punishable under section 58 of the Crimes Act for his or her offence.
Liability for murder and alternative homicide offences
As defined by section 18 (1) (a) Crimes Act 1900, Murder “is made out where a voluntary act or omission of the accused causes the death of the deceased and the act is committed with:
An intent to inflict grievous bodily harm, or
An intent to kill, or
Reckless indifference to human life, or
Committed by the accused or some accomplice with him or her in an attempt to commit, or during or immediately after the commission of, an offence punishable by at least 25 years imprisonment (constructive murder)” (Judcom.nsw.gov.au, 2015).
In this case it can be seen that Emilie has committed a murder voluntarily or intentionally with a condition of unconscious mind and therefore she is punishable under section 18 of the Crimes Act 1900 (NSW). Though she was provoked by Jack who has beaten her dad badly and has attempted to murder her father, still yet she is liable for the offence. As per the law guiding these acts finds her guilty for the offence. But the level of her punishment depends on the reason for which she has committed the murder and for this reason she needs to defend herself in front of the court of law. Here in this case the term manslaughter has been used that is a legal term for murder but is differentiated from murder by general meaning. As per the Australian Criminal Law defined in Crimes Act 1900 (NSW) manslaughter is not properly defined under section 18 of the act.
The liability of the prosecution is dependent on the proof of reason for committing the offence. Until and unless the offence of the prosecution is proved in front of the court of law, he or she is not liable to any punishment. But for the second offence of assaulting a police officer, she is liable for a punishment for five years. But before ordering the punishment, the court will check why she has committed such crime, was she in a normal state of mind or what factors and elements have influenced her to commit the crime. But as per the law if she is found guilty for committing the murder intentionally she will be liable to an imprisonment for lifetime for about 14 to 20 years depending upon the seriousness of her crime (McKimm, 1972).
Problems faced by prosecution
The major problem faced by the prosecution is presenting defense of the offence committed by her. Though she has committed a voluntary manslaughter, but she was forced to do so by Jack because of his threatening behavior and offence committed towards her father. By studying the case, it is understood that Emilie has committed the crime due to anger and unconscious state of mind. She is arrested by the police officers and is questioned to answer the reason for her commitment of this serious crime of harming someone bodily and killing him. She is tortured by the questions of the police officials under a disturbed state of mind. But still yet she needs to protect herself by creating a good defense to present her not guilty for the crime. Therefore the foremost problem is to present a good and proper defense to prove she is innocent. She needs to defense her crime by proper reasoning and have to accept the decision of the court of law.
Defenses that can be raised
Emilie has committed a voluntary manslaughter due to the influence of the surrounding conditions that has forced her to commit the serious crime of fatal assault on Jack. Along with the fatal assault on Jack she has also assaulted a police officer and tried to resist arrest. But all this happen because of her surrounding conditions and psychological pressure that has put her in a state of unconscious mind and made her commit such crime. Some points are presented below to defense her and prove that the crime was not done intentionally and was committed due to surrounding pressures exerted on her (Lanham, 2006).
Self defense: It is presented by Mason CJ in the year 1978 that self defense in the eye of law is proved when the jury considers that the accused killed the deceased in a belief that some unlawful act was going to be committed against her which threatened her and made her commit the crime. Here the belief is dependent on the situation the accused was facing at that particular moment. She committed the crime just to save her own life. In this case it can be seen that Emilie felt threaten of life because Jack has already beaten her father severely and tried to kill her father to get him away from their personal matter.
Provocation: Provocation is a part of statutory law that represents an offence or a defense depending on the situation. It has been seen from the case that Emilie was provoked by Jack and was threatened by him for a long time. When she found her father to be in a serious condition just because of Jack, she was unable to control her temper. In the year 2014, New South Wales Law on provocation was changed that says that the deceased must have committed some serious offence that is indictable, which has forced the accused to commit such crime (Singh v R  NSWSC 637, Singh v R in LIAC Crime Library). In this case, offense of provocation is committed by Jack that has forced Emilie to commit such crime.
Purpose: Before coming into any decision it is important to understand the purpose of the crime that was committed by Emilie. It can be understand by studying the case that Emilie was forced by the surrounding pressure to commit such crime. She was intended by Jack who provoked her to commit such offense. Therefore it can be said that she has not committed the crime intentionally being in a normal state of mind.
Fault of the medical team: It can be seen from the case study that it was also the fault of the medical team that led to the death of the deceased. If they would have identified his fifth wound and made a quick treatment of the wound, the person would have survived. Therefore Emilie alone was not responsible for the death of the deceased. It was the negligence of the medical team that has also led to the death of the deceased.
The person assaulted is also a criminal: It can be seen from the case study that Jack himself has committed a crime of attempt of murder which is almost equal to murder and he has been provoking Emilie since few years. Therefore As per New South Wales law on provocation, she is partially responsible for the crime and the crime is not committed intentionally being is a normal state of mind. But many critics are also presented on the law of provocation that explains that a person must not take step himself but take help of the law to save her from provocation. It is a duty of a normal person to control his or her anger at any situation (Nile, 2013).
Unconscious mind: Another reason for committing such serious offense is the state of unconscious mind at that particular point of time. When she heard the news that her father was beaten by Jack severely and he is in a serious condition, she lost control of her mind and when Jack came to her and started provoking her again, she became furious and committed the crime (Watson et al., 1971). So, it can be said that she was in a state of unconscious mind that made her commit the crime. After committing the fatal assault on Jack, her unconscious mind has also forced her to assault a police officer and made her try to escape from everything and run away to see her father.
It can be understood by studying the case that though Emilie is responsible for committing such serious crime, but she did not commit the crime intentionally. It was the surrounding situation that forced her to commit the crime. She committed the crime to protect her from provocation and in sense of self defense. The crime for assaulting an officer was committed by her due to being in a state of unconscious mind. At that particular moment she just wanted to meet her elderly father who was in a serious condition, severely beaten by Jack. Therefore it can be said that it was the situation that forced her to commit such offense.
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