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The Difference Between Murder & Manslaughter

In a sensational decision handed down in the Queensland Court of Appeal, the murder conviction of Gerard Baden-Clay in relation to the death of his wife Allison has been downgraded to manslaughter.

The case of Baden-Clay, who was accused of murdering his wife in a domestic dispute and later reporting her missing, has made national headlines over the past few years. After being convicted of murder in July 2014, this conviction has now been set aside, meaning that Baden-Clay must be re-sentenced in relation to the offence.

This is not an uncommon scenario in criminal proceedings, whereby Prosecutors have difficulty proving murder, which requires an intent to kill, as opposed to manslaughter, which does not require the same intent.

This article examines the differences between manslaughter and murder under New South Wales law.

A conviction of murder is a conviction for killing a person with the intent to kill and malice a forethought. This means that to be convicted for murder, a person must have intended to end the victim’s life at the time that they took the actions that resulted in their death. The maximum penalty for a murder charge in New South Wales is life imprisonment. The average sentence for murder cases in the mid-range of seriousness is approximately 20 years.

Possible defences to a murder conviction are self-defence, where the action resulting in the death of the person were necessary to defend oneself; duress, where a threat is made to the offender’s life or the offender’s family to the extent that the act of killing would be considered reasonable, or in some cases “necessity”.

The offence of manslaughter can be defined as a homicide without the intent to kill, or a homicide without reckless indifference to human life. This means that while a person may have performed the acts that resulted in a death, it cannot be proven that they intended to do so. The maximum penalty for the charge of manslaughter in New South Wales is 25 years’ imprisonment. Other penalties include fines, bonds, suspended sentences, or smaller prison sentences. The average sentence for a manslaughter charge in the mid-range of seriousness is approximately seven years.

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Drug Related Charges in NSW

A spate of recent drug related deaths has once again put penalties for drugs charges in the spotlight. The death of a woman at Sydney’s Stereosonic Music Festival, and the death of a man at Adelaide’s equivalent has resulted in a flurry of media reports relating to the use of recreational drugs in NSW. It would not be surprising to see Magistrates and Judges begin to take what is perceived to be a harsher approach to these types of offences given the level of social scrutiny they are receiving.

There are two main types of drug offence in New South Wales. The first is “possession”, i.e. being in possession of drugs for personal use. The second is “supply”, i.e. being in possession of drugs intended to be sold or provided to other people.

The offence of possessing a prohibited drug in New South Wales carries a maximum penalty of two years in jail and a $2,200.00 fine. For more serious possession offences (such as repeat offences) a prison sentence can be a possible outcome if you are found guilty.

For a less serious manifestation of this offence (such as a first offence), a Community Service Order, Good Behaviour Bond, fine or Section 10 (meaning your conviction is not recorded) are all possible outcomes if you are found guilty.

In NSW, the offence of supplying a prohibited drug carries a maximum penalty of life imprisonment.

Determining if you are guilty of a supply offence depends on the amount and type of drug you are caught with. The Drug Misuse & Trafficking Act sets out the small, trafficable, indictable, commercial and large commercial quantities for each drug. People may be surprised at the small amount of drugs that are required to render you guilty of a supply offence.

Your penalty for any of the above offences will depend on a range of factors including the type of drug you are caught with, the amount of drugs you are caught with, and the circumstances surrounding the offence.

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The Jury System in NSW

On 18 July 2009 the nation woke to news of the brutal murders of five members of the Lin family who were slain in their home as they slept.  Family member Robert Xie was charged with all 5 murders, accused with bludgeoning the family to death with a hammer-like object.

The matter is currently before the Supreme Court of NSW for a full criminal trial.  After 11 days of deliberation, the 12 member jury have now been instructed by Supreme Court Justice Elizabeth Fullerton that she will accept a majority verdict, being a verdict from no less than 11 members of the 12 member jury, as opposed to the usual requirement for a unanimous verdict whereby all jurors must agree on their decision of guilty or not guilty.

In the case of the Lim family murders, the Judge has decided that a majority verdict of 11 to 1 will be accepted.  This is significant because it means that even a detractor, the Defendant may still be found guilty of the brutal murders.

Most adult members of the community will be called for jury duty at some stage in their lives. This involves attending a Courthouse on a nominated date and, if selected, sitting in on trials and deliberating a “guilty” or “not guilty” verdict with your fellow jurors. You will be required to examine evidence, hear witness testimony and consider the submissions of the relevant parties’ lawyers before making your decision.

You can be excused from jury duty if it is likely to cause serious hardship to you, you have a disability that renders you unsuitable, there is a conflict of interest (e.g. you know the accused) or you have some other legitimate reason, such as a health condition, that prevents you from serving on a jury.

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Changes to Swimming Pool Laws

Part of the great Australian dream is to own a property with a swimming pool. If you already own one, then you need to be prepared for new laws surrounding swimming pools that come into effect on Friday, 29 April 2016.

The laws are aimed at improving swimming pool safety and compliance by forcing owners of properties with swimming pools to ensure that they are compliant before they rent or sell a property.

There are two arms to the new laws:

Selling Your Property

If you are selling a property after 29 April 2016 that has a swimming pool or spa pool you must ensure that your contract includes:

  • a valid swimming pool certificate of compliance or relevant occupation certificate issued within the last three years AND;
  • a certificate of registration.

If you try to sell your property without these documents attached to your contract and the buyer finds out about it they will be able to withdraw from the purchase and get their deposit back without penalty.

Renting Your Property to a Tenant

if you rent a property to a tenant that has a swimming pool or spa pool you must ensure that any residential tenancy agreement entered into on or after 29 April 2016 includes:

  • a valid swimming pool certificate of compliance or irrelevant occupation certificate issued within the last three years AND;
  • a certificate of registration.

Obtaining the Necessary Documents

There are two ways you can obtain a certificate of compliance for your swimming pool/spa:

  • Make an application to your local Council to come and inspect your pool. If it is compliant they will issue you with a compliance certificate. If it is not compliant they will issue you with a work order to complete repairs/alterations that you need to complete before you will receive your compliance certificate.
  • Engage an accredited swimming pool certifier who must be registered with the Building Professionals Board. The process is the same, they will inspect your pool but only issue you with a compliance certificate if your pool is compliant.

Once you receive your certificate of compliance it is valid for three years from the date of its issue.

You can register your swimming pool (which is different to getting a compliance certificate) by contacting your local Council. Some councils even allow you to do this online.

Remember, if you do not have the relevant documents by 29 April 2016, you put your contract for sale or residential tenancy agreement in jeopardy.

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Legal Protections For Off The Plan Property Purchases In NSW 2015

Off the Plan contracts are used by sellers to sell vacant lots of land or strata units before the necessary building works have been completed or before a subdivision has taken place.

Almost all of these types of contracts include sunset clauses.  A sunset clause is a clause that allows for the buyer or the seller to pull out of the deal if the development is not completed within a certain timeframe (known as the ‘sunset date’).

Recently there has been a spate of cases where developers have used this to their advantage.  Given the huge growth in the property market, lots that were sold 1-2 years ago are now worth much more than they were at the time they were sold, however this benefit passes to the purchaser as they locked in their price for the property when contracts first exchanged.  As a result, developers have been deliberately delaying completion of their developments as a way to get out of their contacts after the sunset date has expired so they can on-sell the properties for a higher price.

While purchasers in these situations are entitled to get their deposit back they usually can’t recover their legal costs and may be priced out of the market as they can no longer afford to buy property to replace the property they lost.

To avoid this unscrupulous activity the government has announced amendments to the Conveyancing Act 1919 that dictates that before a seller can cancel a contract under a sunset clause they must get the written consent of the purchaser, or obtain an order from the Supreme Court permitting the cancellation of the contract.  In considering such an application the court will consider the terms of the contract, whether or not the seller has acted in bad faith, the reasons for the delay and whether the subject lot has increased in value.

If you have found yourself in this situation and are confused about your rights, contact the team at Complete Legal and Conveyancing.

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The Government’s power to declare war

Recent terrorist attacks in Paris have ignited furious debate about the role that military action should play in defeating the terrorist group known as ISIS/ISIL.  While the savagery in Paris has taken centre stage, debate is also raging as to the perception that the western world cares more for the lives lost in Paris then those lost in equally appalling attacks in Lebanon, Iraq, Kenya and Syria.

The answer to this question is clear to the writer: the attacks in Paris resonate more readily with Westerners because we share an almost identical way of life, ergo these attacks seem more relevant to us. It is not a distinction between “more” or “less” tragic, but rather a reflection of human psychology, that is, it is human nature to react more passionately to what is happening in our own backyard.

The debate also poses an interesting legal question however. What are the Australian Government’s war powers?

Under the Australian Constitution the Government holds what are known as Prerogative Powers, also known as the power to deploy armed forces, domestically and internationally.

An interesting point to note in relation to Australia’s position is that the Commonwealth Government does not necessarily require Parliament’s approval before it decides to deploy armed forces or “declare war”.  The result is that this is usually a decision made by the Prime Minister taken in consideration with the views of the Commanders in Chief of Australia’s military forces.

This is in line with the situation in places like the United Kingdom, however differs to other allied nations such as the USA who typically require the authorisation of Congress in order to “declare war”. This is a simplistic snapshot of these powers, but are interesting considerations nonetheless.

What will be more interesting is Australia’s response to these terrorist attacks now that for the first time ISIS has brought their murderous fight to Western soil.  Whatever Australia’s involvement, what is certain is that these acts of terror are barbaric and must not be allowed to continue.

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Granny Flat Arrangements

Where Parents Move in with Children

Granny Flat arrangements whereby parents move in with their children are becoming more and more common.  This often involves a financial contribution from the parent to the child so that they can live in the child’s existing dwelling, or fund the construction of a granny flat on the child’s property.

The most common way of setting up such an agreement is for the parent who is moving into the child’s property to purchase a share of the property as “tenants in common” with the percentage purchased being proportionate to their financial contribution.  This means the parent owns a percentage of the property and if push comes to shove the property can be sold to ensure that the parent gets their money back (or an amount of money equal to their percentage share of the property).  This is the most secure way of putting this agreement into effect.

The second way that such an agreement can be put into effect is by way of “joint tenancy” whereby the parent becomes a joint owner of the property. The disadvantage of this arrangement is that upon the death of one co-owner (most likely the parent) the surviving co-owner will take the whole property as their own.  This is likely to dismay any siblings upon the parent’s death who will miss out on inheriting a share of the parents’ funds invested into the project.

The third way is by way of “lease and loan”.  This is similar to a retirement village arrangement whereby the child grants a lease to the parent to live in the property in return for a “loan”, being a financial contribution from the parent.  This is the best way to secure the parent’s interest without them actually taking a legal ownership in the property.

Before you consider a granny flat arrangement it is important that you seek the advice of Centrelink as to how such the arrangement may affect your pension.  It is also advisable to obtain advice from an accountant as to any capital gains tax liabilities that may arise as a result of the arrangement.

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Case Study: Dying Without a Will

The Surry Hills property of an elderly woman whose body lay undiscovered for some 8 years after her passing has been determined by the Supreme Court of New South Wales to rightfully belong to her sister-in-law. This is despite the fact that the deceased died leaving a number of blood relatives behind.

The decision by the Supreme Court may surprise some on the surface, however it is a decision that makes legal sense.

A Coronial Enquiry found that the deceased, Ms Wood, died at the age of 86 in the year 2004. Despite the fact that her body was not found until 2011, the law dictates that where a person dies without a Will the question of who is entitled to their estate is to be determined as at the date of the person’s death.

As at the year 2004 (when Ms Wood died) Ms Wood had no spouse, children or parents surviving her and only one remaining sibling.  The laws that govern what happens when someone dies without a will dictate that her surviving sibling became the person entitled to her estate immediately upon Ms Woods’ death.  What makes this case interesting is that the said sibling died after Ms Wood’s passing 2004 but before her body was discovered in 2011. The issue of contention amongst family members is the fact that this did not extinguish his entitlement. As he was entitled to Ms Wood’s estate at the date of his death, it follows that the beneficiary of his estate (being his wife/Ms Wood’s sister-in-law) became the indirect beneficiary of Ms Wood’s estate as well.

The decision of the Supreme Court has left many members of Ms Wood’s family who are related to her by blood outraged that her estate has passed to someone who was related to the deceased only by marriage.

While the circumstances surrounding Ms Woods’ death are disturbing, the lesson is that had she written a Will before her passing then her estate would have ended up in the hands of someone other than a sister-in-law with whom she had little contact (such as a blood relative).

Ms Wood’s estate was made up of her Surry Hills home which is expected to fetch $1.2million at auction.

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Parking Fines – What Can You Do?

One of the most topical issues within the Penrith CBD and in fact across all major cities in NSW is that of parking fines and/or penalties for not complying with the rules of privately owned car parks.

Typically there are two types of car parks.  The first are carparks owned by Local Council which are open to the public. The second type of carpark are those which are privately owned.

A fine issued by a local Council is a penalty for not complying with a Council regulation and is usually governed by legislation.  In the context of privately owned carparks however, these penalties are usually an issue of Contract Law whereby the entity that owns the car park takes action against you for breaching the contract you entered into when you entered the carpark.

If you want to fight a parking fine issued to you by a local Council or Government you should consider the following:

  • Whether you have a legitimate reason for having breached the rules (for example, you were suffering ill health).
  • Whether or not a mistake has been made (for example if you have evidence you did not breach the rules).
  • Whether or not the signs indicating the parking rules are easily seen and accessible.

Fighting a penalty imposed by the owner of a privately owned car park can be a little more tricky.  When you enter a private car park the signs that you read usually indicate to you that you are entering into a contract with the owner to use the car park in accordance with the terms set out in those signs.  If you cannot negotiate your way out of such a fine/penalty you will most likely need to commence Court proceedings for breach of contract as opposed to a simple application to the Council for review.

If you find yourself in a parking dispute, consider contacting your local council to see what can be done or seeking advice from a suitably qualified contract lawyer.

 

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Changes to Metadata Laws 2015

As of Tuesday, 13 October 2015 a new range of laws came into effect requiring Telcos such as Telstra and other carriers to start storing people’s metadata in relation to email, internet, mobile phone use and landline use.

As discussed in last week’s column, this means that your Telco will now be required to store data about who you call, the telephone calls you receive, the location of both parties during such calls, the duration of calls, and similar data in relation to emails, internet usage and text messaging.

One of the more controversial aspects of the new laws is the fact that this information can potentially be accessed without a warrant, which means that there is no system of checks and balances by the judicial system.  The absence of a warrant means that there is no Magistrate or Judge who will assess each individual case and determine whether it is appropriate for the relevant authority to access the data in question.

It is important to note that at this stage these laws do not apply to websites that you access (throw back to our article about Ashley Madison users – you need not panic yet).

The rationale behind these laws is to ensure that the relevant authorities can easily access information with regard to suspected national security risks (or to use this decade’s hot word “terrorists”), however the reality is that the same laws apply to every day law abiding citizens.

Despite the opinion of conspiracy theorists however, the government has neither the time nor resources to monitor text messages about ordinary Australian’s social plans or basic interactions between friends or family (let’s face it, they are far too busy staging leadership coups and analysing opinion polls).

The reality is that these laws will likely have very little long term effect on everyday Australian’s using telecommunication devices.  An interesting question however is the impact that this will have on piracy laws, and more importantly, enforcement.  Now that internet providers are required to store IP addresses, this may provide an opportunity for authorities to more easily access information that identifies people who pirate music, movies and television shows online.

It remains to be seen whether or not metadata retention laws will assist in improving Australia’s national security.  The laws are now here however, and every day cyberspace continues to become more and more like the real world.