It seems that cricketing legend and Victorian coach David Hookes’ alleged killer, 21 year old hotel bouncer Zdravco Micevic, has so far only been charged with common assault. Although, like the rest of the public, I don’t know the detailed facts, and I’m not a criminal law specialist anyway, I can’t help wondering why a charge of murder hasn’t been laid. It could always be withdrawn later if the DPP so advised.
Most of the media reports about the circumstances surrounding Hookes’ death say that, although there was an earlier heated discussion and minor scuffle, the fatal assault occurred after he had walked away and was climbing into his car to go home. That doesn’t sound like either self-defence or performance of bona fide crowd control functions: just naked, calculated thuggery (not exactly unheard of among nightclub and hotel bouncers – the defence lawyers certainly wouldn’t want me on the jury, I can tell you). Section 3A of the Crimes Act 1958 (Victoria) provides:
3A. Unintentional killing in the course or furtherance of a crime of violence
(1) A person who unintentionally causes the death of another person by an act
of violence done in the course or furtherance of a crime the necessary
elements of which include violence for which a person upon first conviction
may, under or by virtue of any enactment, be sentenced to level 1 imprisonment
(life) or to imprisonment for a term of 10 years or more shall be liable to be
convicted of murder as though he had killed that person intentionally.
(2) The rule of law known as the felony-murder rule (whereby a person who
unintentionally causes the death of another by an act of violence done in the
course or furtherance of a felony of violence is liable to be convicted of
murder as though he had killed that person intentionally) is hereby abrogated.
Although common assault is an offence carrying a maximum penalty of less than 10 year imprisonment, there are other more serious offences in Victorian law which are arguably more appropriate, and which in turn permit the laying of a murder charge even under Victoria’s statutorily watered-down felony-murder rule (section 3A). For example, section 16 imposes 20 years imprisonment as the maximum sentence for intentionally causing serious injury to another person without lawful excuse, while section 17 imposes a 15 year maximum sentence where serious injury is inflicted recklessly without lawful excuse. It’s hardly unreasonable to suggest that king-hitting a 48 year old man while he’s climbing into his car to drive home might well fit the elements of section 16 or 17 (or both). Charging the alleged killer with one of these offences (probably section 17) would then allow a murder charge under section 3A.
Unless the detailed facts known to police are radically different from what has so far been reported in the media, it’s difficult to see why police have not seen fit to lay these more serious charges against Micevic.
Incidentally, I see Professor Bunyip has also blogged on the Hookes tragedy, musing about why Micevic was allowed bail. I suspect that the simple answer is that there’s a presumption in favour of bail for relatively minor charges like common assault. That isn’t true for murder. It would have been legally difficult for a magistrate to refuse bail in those circumstances, whatever his personal views. Arguably the fault lies with the police failure to lay appropriately serious charges. On the other hand, perhaps such charges are being considered, but they want to make sure of the facts and evidence first, and obtain DPP advice. That might well be the most prudent way to proceed, given that it seems unlikely in the short term that Micevic would offend again (especially in view of his bail conditions).
Professor Bunyip also suggests Micevic might have been refused bail because his own safety may be at risk from irate members of the public. Of course, we wouldn’t want to encourage vigilante justice, would we? However, assuaging the community’s understandable feelings of outrage in high profile cases that naturally arouse deep anger is precisely the reason why police and courts should be scrupulous about granting bail and laying appropriate charges. If the community perceives that the legal system is failing to do its job and treating offenders with kid gloves (especially while extorting vast amounts of money out of the generally law-abiding public with speed and red light cameras), then vigilante justice becomes far more likely.
Update – Tim Blair publishes a fine obituary of David Hookes.
Update 2 – Yobbo blogs great passionate responses to Hookesie’s killing here and here, and Murph has an excellent piece here. This is the sort of topic that the blogosphere covers really well, arguably better than the mainstream media, because of the uninhibited passion and immediacy that mainstream editors mostly filter out.