Hard Cases

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Lawyers have this thing they sometimes like to say. “Hard cases make bad law.” It’s true. About thirty years ago I got the job to represent a nice, sweet, softly-spoken lady who stabbed her husband 87 times with a serrated kitchen knife. Not surprisingly he ended up dead as a doornail.

Photo by Bill Oxford, Unsplash

According to the neighbours, for years the deceased had been teeing off on his diminutive wife, treating her like his own private punching bag. One day she decided to punch back. She picked up the first thing she could lay her hands on, and started swinging. By the time she stopped hubby had more holes in him than a Swiss cheese. So she was charged with murder.

Now when it comes to murder, lawyers have another saying. “Bad guy kills good guy, that’s murder, good guy kills bad guy, that’s manslaughter.” There’s a big difference, trust me, especially in Queensland.

Of course, murder or manslaughter, it’s all homicide, and any homicide carries life in the slammer as a maximum. But the difference is, with a manslaughter/homicide judges have a sentencing discretion to hand out something less than life. But, in Queensland, with a murder/homicide they’re duty bound to give the lot – life in prison, with absolutely no shot at parole for a minimum of twenty years.

Fortunately for my client, in the scheme of things she was the good guy, relatively speaking. The tricks her husband had been getting up to were enough to make any juror’s skin crawl, so when she pleaded not guilty, the “twelve good men and true” were all ears to hear her story. And on her story she had a full defence to murder, because she claimed that although she acted violently, irrationally, out of fear, outrage and anger, she had no actual intention of killing the deceased.

In those days, the charge of murder was reserved for those who acted with an actual subjective positive intention to kill or cause grievous bodily harm. It was only for those who acted with actual intent that the legislature saw fit to insist on nothing short of mandatory life imprisonment. For those guilty of mere criminal negligence, recklessness or even callous indifference, albeit with the same lethal consequences, sentencing judges were left with a discretion to temper justice with mercy. So for my client murder became manslaughter, and instead of life imprisonment the judge sentenced her to six years, of which she served a little over three.

Not so long ago a strung-out junkie was convicted of manslaughter after he left his two-year-old baby boy to die, because he was tired of looking after him. No one could prove he actually intended to kill his son, but the sentencing judge rightly called it “gross negligence of an extreme kind,” and sentenced him to 12 years in prison.

Now that’s what lawyers mean when they talk about “hard cases”. The sort of cases that get the papers talking about, and the pollies thinking about, rattling the law-and-order sabre and beefing things up.

So, earlier this month, 120 years after the Queensland Criminal Code proclaimed those who set out to kill intentionally – not recklessly or indifferently – must face mandatory life imprisonment, the Palaszczuk government, overriding protestations from The Law Society, the Women’s Legal Service and the Queensland Bar Association, extended the definition of murder to include the concept of “reckless indifference”. Now, for the first time, if a death is caused by any act done, or omission made, without any actual positive intent to do harm but with reckless indifference to human life, in Queensland that’s murder, punishable by mandatory life imprisonment.

The new definition will no doubt see some criminally bad parents locked up for life, and probably the odd drunken teenage hoon who recklessly rolls his car and kills somebody in the process, or the soccer mum, too preoccupied with the car radio and texting her friends to notice she’s about to run right over the toddler from next door, and it certainly will permanently imprison any battered wife who decides one day she’s had enough and comes out swinging with a kitchen knife.

Whether that’s good law or bad, only time and circumstance will tell.

This article was first published in The Courier Mail, 17 June 2019

Chris Nyst

Lawyer, Novelist and Film Maker

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