Why not murder?

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 It could always be withdrawn later if the DPP so advised.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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Robert
2021 years ago

Professor Bunyip also suggests Micevic might have been refused bail because his own safety may be at risk from irate members of the public.

Micevic’s address and phone number has already been posted in a comment to Sam Ward’s response to the incident.

Homer Paxton
Homer Paxton
2021 years ago

Ken,
my understanding is his death came from his head hitting the footpath.Is the person who hit him liable for that?

I was always advised to avoid closing time at pubs and I now see a QLD academic has shown the wisdom of that advice as that is when all the violence erupts.

Ken Parish
Ken Parish
2021 years ago

Homer,

As I confessed in the main post, I’m not a criminal law specialist. However, my general understanding is that a person is both criminally and civilly liable for the direct, natural and foreseeable consequences of their actions. King-hitting a middle-aged man from behind on a kerbed roadside while he’s not looking is very likely to lead to his falling and striking his head on the gutter or pavement, just as shoving someone backwards violently towards an unfenced pit of hungry crocodiles is likely to lead to the victim being eaten. The fact that the immediate agent of injury/death is not the offender’s fists or a weapon he is holding doesn’t make him any less culpable. If that weren’t the case, getting away with murder would be a piece of cake.

Dave Ricardo
Dave Ricardo
2021 years ago

Ken

Is there such a crime as manslaughter, or is that just on TV?

Mind you, I’d be delighted to see the bouncer go down for murder. I was outraged yesterday when I thought Hookes had been hit just outside the pub in the midst of a fight. Now that I read he was hit 65 metres down the road, getting into his car … well, that is just gratuitous thuggery.

I presume that the pub will face a massive civil liability from all this. And maybe not just the pub itself. A lot of pubs are owned by large companies. For instance: Foster’s Group owns heaps of pubs, though I don’t know if they own the pub in question.

John
2021 years ago

On the apparent facts, in what sense is Micevic less “generally law-abiding” than someone who routinely speeds or runs red lights and kills someone else as a result ?

Mork
Mork
2021 years ago

Ken, what’s wrong with the conventional definition of murder, which as I recall includes causing death through an act that was intended to cause grevious bodily harm? I don’t think you even need to go to the felony-murder rule.

It’s a long time since my criminal law course (and I got my worst ever university mark in it!), but I would have thought that it might be possible to convince a jury that king-hitting a bloke in the head was intended to cause GBH.

For Dave – it would be manslaughter if the thug’s act was criminally reckless or an “unlawful dangerous act”, which I think would be pretty easy to prove if you can’t get up on murder.

Robert
2021 years ago

John, this is his second assault charge in two months. True, he hasn’t been found guilty, but it certainly allows us to conclude that he’s walking a fine line between bouncer and basher.

Robert
2021 years ago

Mork, the GBH/murder rule was my first thought, but I’m not sure how different Victoria is to WA.

Dave Ricardo
Dave Ricardo
2021 years ago

“in what sense is Micevic less “generally law-abiding” than someone who routinely speeds or runs red lights and kills someone else as a result ?”

Someone who routinely speeds or runs red lights and kills someone doesn’t (generally) intend to do anyone any harm. If they do kill someone, they are culpable and should go to jail, but not for murder.

Micevic followed Hookes 65 m up the road and king hit in the face (from behind). I think it’s a fair assumption that Micevic did intend to harm Hookes – maybe not to kill him, but certainly to harm him, and he died as a direct result of the intention to harm him.

There is a big difference.

ds
ds
2021 years ago

Ken,
Murder/manslaughter investigations are necessarily protracted, particularly in matters like this one. Mork was pretty much on the money. A few points you should consider:

* The matter will now be referred to the Coroner to establish the cause/circumstances of Hookes’ death. The heart attack factor would obviously be a major consideration in the investigation.
* Proving intent is a major issue.
* The DPP will probably have a major say in the matter, and will be guided by the findings of the Coroner.
* More witnesses will have to be interviewed.
* Proceeding with charges that may have to be dropped later is not a professional way to conduct investigations, and could lead to civil claims against the government.
* The media don’t have all the facts. The facts are for the investigators to establish.

murph
2021 years ago

My understanding of the law is that he’s liable to go for murder. If you hit somebody and they die you cannot then say that you didn’t intend to kill them. Whether he intended to kill David Hookes is not the point. He did intend to hurt Hookes and Hookes dies as a result. Therefore, he is liable for a murder charge.

Graham
2021 years ago

As far as I know, premeditation has a bit to do with the distinction? As Dave said, running up to someone to bop him one sounds like premeditation to me.

But I can see why they’re taking their time with escalating the charge.

observa
observa
2021 years ago

I think Paul Nemer in SA finally got an 18 month non-parole period for shooting an innocent newspaper delivery man in the eye. Now you can’t see our friend getting much more than this, given that he used his naked fist. Perhaps Mr Micevic has suffered a traumatic upbringing in Yugoslavia and this will mitigate in his favour over Nemer.

Niall
2021 years ago

I seriously doubt that any jury would convict on a charge of murder when the intent to kill cannot be proven beyond resaonable doubt. That manslaughter was the result of the individual’s actions is, in my opinion, well and truely beyond doubt and should be applied.

Niall
2021 years ago

I seriously doubt that any jury would convict on a charge of murder when the intent to kill cannot be proven beyond resaonable doubt. That manslaughter was the result of the individual’s actions is, in my opinion, well and truely beyond doubt and should be applied.

murph
2021 years ago

Niall

It does not matter whether he intended to kill Hookes. If he simply intended to hurt his victim and that victim dies, then it is murder.

You cannot belt someone in the head and then say “I meant to teach him a lesson but not kill him.”

I think a jury will convict.

mt
mt
2021 years ago

On the purely legal point about Victoria’s statutory felony-murder rule, it’s been suggested that the phrase ‘necessary elements of which include violence’ means that the ONLY crime to which the rule now applies is robbery. R v Butcher I think is cited in support of this. (I forget the citation.)

Antipodean
Antipodean
2021 years ago

This reminds me of an infamous case in Perth some time ago where a local thug, (Christianson?) beat up a younger night clubber where he fell to the pavement after the blow and died as a result of head injuries sustained from the fall. Having links to organized he skipped town and surrendered to police in Melbourne a few days later accompanied by his mob lawyer. As I recall the magistrate found that the night clubbers inebriated state was a significant contribution to his injuries and the thug got off with a relatively light sentence.

Perhaps the bouncer’s lawyer will go for the same angle?

Tysen
Tysen
2021 years ago

As far as I recall the mens rea for murder in Victoria is:
-Intention to kill OR
-Intention to cause serious injury OR
-Recklessness as to probable death OR
-Recklessness as to probable serious injury

Dan
Dan
2021 years ago

From what I’ve read, I think you’d have a tough time showing either a) that there was intention to cause grievous bodily harm (for common law murder), or b) that he intentionally or recklessly caused serious injury (for the statutory provision). Surely there are plenty of common assaults where people fall over and hit their head without it causing serious injury – you’d be ascribing unusual prescience to the bouncer to say that he thought that serious injury would probably result from his actions but proceeded anyway (if I’m remembering the right test for recklessness, from Crabbe?) If Hookes had been lying on the ground having the shit kicked out of him, then you could probably have shown intention to cause gbh. Might well be that that would have been the bouncer’s next move, but I guess we’ll never know.

Michael Jennings
2021 years ago

b) that he intentionally or recklessly caused serious injury

Even if he didn’t cause serious injury intentially, surely he recklessly caused serious injury? I suppose it depends on just where and how hard he hit him (and how you define serious injury), but if it was a very hard vertical blow to the top of the head (which is what sounds like happened from what I have heard described) then I would think there would be a pretty good chance of

Tysen
Tysen
2021 years ago

I’m pretty sure that a blow sufficient to knock a person unconscious is sufficient to constitute a serious injury. I can’t remember the case but it involved a prostitute losing consciousness.

Dave Ricardo
Dave Ricardo
2021 years ago

Well, it looks like the bush lawyers are wrong. He’s been charged with manslaughter.

Presumably the DPP thinks this will be a lay down misere, while murder might have been hard to prove.

Ken Parish
Ken Parish
2021 years ago

Dave,

I think you’re right.

Renee
Renee
2021 years ago

Tysen,

I think the case you are referring to is
R v Church [1966} 1 QB 59

It involved a woman being struck on the head and rendered unconscious; then death occurred later, after the accused had thrown her body in a river. The case was argued on the concomitance issue (concurring of mens rea and actus reus). From memory I think he was found guilty.

John
2021 years ago

Dave, I conclude that Micevic’s case (if the facts are as alleged) is exactly analogous, in legal and moral terms, to that of a serial red-light runner who kills someone. The appropriate charge is manslaughter and the fact that there was no intent to kill is not a defence, given the recklessness of the act and the foreseeability of fatal consequences.

The only difference is in the proportion of people who routinely run red lights, compared to those who commit assault on a regular basis, and in the capacity of the former group to regard themselves as “normally law-abiding”.

Dave Ricardo
Dave Ricardo
2021 years ago

John,

I wrote that red light runners are not murderers, whereas, at the time of writing, I and others thought that Micevic was a murderer. Various bloggers on this thread argued that his intent was enough to bring a murder charge.

The DPP has seen fit to prosecute him only for manslaughter. If he is guilty of only this lesser offence, then he is like a red light runner.

But its a big if.

Ken Parish
Ken Parish
2021 years ago

I think I’ll amend my previous “normally law-abiding” comment and confine it to speed cameras. I agree that running red lights is inherently dangerous and that drivers who do it always deserve to be caught and punished lest they ultimately kill someone.

However, speed cameras are mostly an entirely different kettle of fish. They’re invariably placed on wide straight downhill stretches of road where the authorities know they’re going to catch lots of unwitting victims, even though it’s perfectly safe (in most road conditions) to exceed the designated speed limit by 5 or even 10 kph. The sole purpose of these cameras is revenue-raising: if they were serious about reducing the road toll then most of the cameras would be positioned outside schools and on quiet suburban streets where children play.

I understand that the most profitable speed camera in NSW is the one on Spit Hill at Mosman positioned to catch outbound motorists coming down the hill towards the Spit Bridge. It’s on a 6 lane highway with only a single (seldom used) side street, and the only way of remaining below the designated speed limit is to keep your foot on the brake all the way down the hill. Local daily commuters know this and make sure their foot remains firmly on the brake, however the camera catches huge numbers of interstate and overseas visitors and day trippers from the western suburbs on their way for a picnic at the beach.

The Spit Hill camera serves a not dissimilar function to the surfie gangs of my youth, who sometimes congregated at Manly Wharf to make sport by bashing the shit out of “westies”, “trogs” and “parras” getting off the Manly Ferry. Quite a few of the more parochial northern beaches locals of today probably quite like the speed camera for a similar reason, but it doesn’t have anything at all to do with road safety.

Andy Heaton
Andy Heaton
2021 years ago

A key point in the death of David Hookes is the fact that he was actively pursued by Micevic, who had left his place of work with the intent of causing injury. Dave Ricardo has also remarked on this within this forum. Had this incident occurred on the pub premises it would be much harder to prove that David Hookes was murdered by Micevic.

If, for example, someone breaks into your house and they sustain injuries whilst you defend yourself, family and property; it is highly unlikely that they would be able to make a successful claim for damages. However, should you chase the burglar and inflict injury upon him some distance away from your home, he would have a strong claim for compensation.

Even if David Hookes had been causing trouble in the pub, he was well away from the premises when he was attacked. There is a strong argument that Micevic had left his place of work with the sole intention of harming David Hookes. It is difficult to avoid the conclusion that Micevic should be facing a charge of murder.

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