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The investigative roles of ASIC

Subject: Criminal Law

Topic: The Case of Adele Vs The state in the death of Victor

Introduction

This case involves the trial of Adele, an Australian woman charged with the murder of her husband Victor. In brief, Adele has shot and injured Victor, her husband of 12 years. Prior to the shooting, Victor had turned to be an abusive husband, frequently assaulting and even causing physical injury on Adele. After the shooting, Adele made an emergency call to the local police and ambulance, where the husband was immediately taken to hospital. However, a road accident involving other vehicles delayed his transport to the hospital and the medical team at the hospital administered an anaesthetic drug, but he was allergic to it. Within few hours, Victor was pronounced dead. The legal question in this case is whether to charge Adele with murder or manslaughter. On her defence, this paper will argue that Adele’s intention was not to kill Victor, but she shot him on her self-defence because it was evidence Victor was a threat. To drive the point, the paper will develop a critical analysis of “murder” defensive homicide and self-defence in order to show that the road delay and administration of the anaesthesia on an allergic patient must have been the major contributors of Victor’s death rather than the action of Adele.  

Australian Criminal law: Homicide (Murder) versus self-defence

The Australian criminal law provides the Jury with the option to decide whether an action accounts to murder or self defence. First, it is important to consider the most likely intention of the offender. For instance, the question “what was the intention of the accused in committing the felony?” Was the act accidental or intentional? (Brown et al 2006). In the case of Adele, the court ought to determine that she shot Victor, her husband of 12 years, in response to his “frequent” abuse. It is also clear that she had warned Victor not to come closer to him. In fact, the bullet that hit Victor was the second Adele had to shoot after the first shot failed to scare him off. Secondly, it is clear that Adele called the ambulance after realising that she had actually shot her husband. According to the Australian law, an action can be considered a case of murder when the offender attempted to conceal his or her action after the death of the victim. Moreover, it is clear that Adele had not intended or though of committing the crime until she was provoked. In case law Lord Morris in Palmer v R [1971] AC 814, it was determined that a reasonable force is used when the victim of the murder was expected to weight to a nicety the particular measure of his or her necessary defensive force. In this case, it is clear that Adele was the actual would be victim of assault until she acted in the only we she thought would have cleared the danger.

The second aspect that the court needs to determine is the fact that murder did not happen because Victor’s death was not due to the shooting incidence. According to the medical reports, three factors led to his death- the shooting, delay in medical assistance and the administration of the wrong anaesthesia. It is worth looking at the actual definition of murder according to the Australian criminal law. In this case, Murder is considered as the Crimes Act 1990 states that murder accounts to the situation in which the act of the offender (accused) or thing by him or her omitted to be done causing the ultimate demise was done or omitted due to reckless indifference to the life of the victim or with the intent to inflict bodily harm or kill the victim. In this case, it is evident that Adele’s action was not meant to kill, although it caused grievous bodily harm to Victor. It is worth noting that the ultimate death of the victim did not result from the effect of the bodily injuries obtained in the act. In fact, the medical reports indicate that the victim could have survived the injuries if there was no delay and if the right anaesthesia was administered.   

The aspect of self defence

 In the case at common law of Zecevic v DPP, the High Court of Australia set out the requirements for an action to be considered an act of self-defence rather than murder. According to the court, the question to be considered is whether the accused had reasonably believed upon reasonable grounds that the action was carried out with necessity to defend his or her life. If the accused had reasonable belief that the action would necessarily provide protection of his body or life due to the existence of reasonable grounds to take the action, then it should not be considered a case of murder but self-defence. If the jury is left in reasonable doubt about the question above, then the case presented in a court of law within the area of jurisdiction must result into an acquittal of the accused. In the case of Adele Vs the state, there is enough evidence that Victor had been assaulting and possibly instilling physical harm on Adele. In fact, evidence indicate that the rate of assault had become frequent, which made it necessary for Adele to find a better way of defending her life. According to the requirement given in the case law of Zecevic v DPP, it is evident that Adele believed upon reasonable grounds that it was necessary for her to take an action in defending her life. Secondly, it is clear that her life was under threat as shown by Victor’s act of approaching her with the intention to cause harm.   

Thirdly, in Commonwealth Criminal Code Section 10.4(2), it is stated that an act is considered self defence if the offender or the accused carried out the conduct in the belief that he or she could have defended his or her life from an actual threat. In the case of Adele, there is substantial evidence that the only best way she could have defended herself was threatening Victor. In act, Adele knew, from experience with Victor, that he would not be scared by any other means apart from the use of the gun. We can prove this by referring to the situation in which he received the gunshot injury. Prior to the shooting, Adele had made a decision to hide from the abusive Victor in their room, but once he made an access to the room, it was not possible for her to run or withdraw, given that Victor was near the entrance. Therefore, the duty to retreat, as provided in the commonwealth case law (Smith and Hogan, Criminal Law, 1996, p264), did not apply. According to the court in the case law R v Bird [1985] 1 WLR 816, it is necessary to note that Victor was the threat, and had intentions to prevent Adele from retreating before causing bodily harm on her.

Conclusion

From the case laws and statutory acts above, it is evidence that Victor’s intention was to cause harm. Secondly, it is evidence that by shooting Victor, Adele intended to scare him off in self-defence. Thirdly, the fact that she called the ambulance provides evidence that she did not intend to kill him. Finally, the cause of Victor’s death is attributed to two other factors apart from the gunshot injuries- delay in medical attention and administration of the wrong anaesthesia.

Crimes Act 1900 §§ 27-30

Crimes Act 1900 § 23

R v Bird [1985] 1 WLR 816,

Smith and Hogan, Criminal Law, 1996, p264),

Brown, D et al, 2006,  Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Material and Commentary on Criminal Law and Process in New South Wales 627